Category Archives: Asia

Friday’s Quick Clicks…

Breaking News: Court Decides to Reopen Hakamada Case

Previous posts on Hakamada case here and here.

This is a case from 1966. Iwao Hakamada has been held in confinement for 48 years. He is at Tokyo Detention Center, on death row.

Shizuoka District Court granted Hakamada’s petition for retrial today, saying that a new DNA testing result indicates that one crutial piece of evidence did not come from Hakamada.

It is the 6th time since 1945 that the courts grant a retrial in a death penalty case. However, the prosecutors still have a chance to appeal the decision.

PostScript:
Iwao Hakamada was released from the Tokyo Detention Center at around 17:20 JST on March 27th, 2014.

From Mainichi Shimbun News:
Court decides to reopen 1966 murder of 4

SHIZUOKA, Japan (Kyodo) — The Shizuoka District Court decided Thursday to reopen a high-profile 1966 murder case in which a former professional boxer has been on death row for more than 30 years for killing four people.

The court also decided to suspend the death penalty for Iwao Hakamada, 78, who was convicted of murdering Fujio Hashimoto, 41-year-old managing director of a soybean processing firm, his wife and their two children and setting fire to their home on June 30, 1966, in Shimizu city, Shizuoka Prefecture, which is now a part of Shizuoka city, as well as his detention.

During the petition for a retrial, his defense lawyers obtained DNA test results that indicated the DNA-type from blood stains detected on five pieces of clothing, which were said to have been worn by the culprit, is different from Hakamada’s.

Accepting the argument, Presiding Judge Hiroaki Murayama said, “The clothes were not those of the defendant,” indicating the possibility that investigators had fabricated the evidence.

Murayama also said, “It is unjust to detain the defendant further, as the possibility of his innocence has become clear to a respectable degree.”

It is the sixth time in postwar Japan that a court has approved a retrial for a defendant for whom capital punishment had been finalized. Of the other five, four were acquitted.

Hakamada, a live-in employee at the soybean processing firm, temporarily admitted to the charges after being arrested in August 1966, but changed his plea to one of innocence from the first court hearing.

Despite his plea, the Shizuoka District Court sentenced him to death in 1968, with the sentence finalized by the Supreme Court in 1980.

He filed his first appeal for a retrial in 1981, which was rejected by the top court in 2008, prompting his sister Hideko, 81, to file a second appeal immediately.

Despite the district court decision, it may still take time before a retrial can begin as prosecutors, who argued that the reliability of the DNA test is low, are expected to appeal the decision to the Tokyo High Court.

The defense team has urged prosecutors not to appeal, given that Hakamada’s mental state has deteriorated during almost 50 years in prison. Amnesty International Japan also issued a statement seeking the immediate start of a retrial, saying, “It is not too much to say that the unfair, long-time detention of a death row inmate is torture.”

After hearing the decision, Hideko said, “I am truly thankful,” while Katsuhiko Nishijima, who heads the defense team, said, “Mr. Hakamada’s strong desire has finally been attained.”

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Interesting write-up on the National University of Singapore’s Innocence Project

For an interesting student write-up on the National University of Singapore’s student-run Innocence Project see here. Way to go!

Singapore: A Need to Reconsider the Accused Person’s Constitutional Right to Counsel

The Singapore High Court recently considered the right of an accused to counsel in the case of James Raj s/o Aroliasamy v PP [2014] SGHC 10 (available here). Article 9 (3) of the Singapore Constitution recognises the right of an arrested person to consult counsel, but does not expressly state the point of time at which the person can do so. Singapore Courts have consistently held that an accused does not have an immediate right to consult counsel. Rather the right to counsel is to be exercised within “reasonable time”. Case law has interpreted such “reasonable time” to include the time needed for police investigations, which would otherwise be hampered by permitting the accused access to counsel.

What is interesting about the High Court’s judgement in James Raj s/o Aroliasamy v PP is that the Judge voiced some doubt about how previous case law had narrowly interpreted the right to counsel. The Judge nevertheless stated that he was bound to follow precedent. Even so, the Judge affirmed that the Prosecution bore the burden of showing why permitting access to counsel would jeopardise investigations in a particular case. It was not enough for the Prosecution to point to, inter alia, the complex or cross-border nature of the case. Rather, the Prosecution had to specifically explain why permitting access to counsel would jeopardise investigations in that case.

The High Court’s judgement reflects the increased willingness of Singapore Courts to closely supervise the work of the Prosecution and other criminal justice agencies. However, it is perhaps time for the Court of Appeal to reconsider its interpretation of the constitutional right to counsel in light of the High Court’s assessment of previous case law in James Raj s/o Aroliasamy v PP.

Wednesday’s Quick Clicks…

Ex-detention officer tells court how death row inmates are executed

Japan still retains the death penalty. Polls suggest that the majority of citizens (more than 85%) support the ultimate punishment. However, when talking with friends or students, I often find that people do not necessarily know about the punishment. Some do not even know how the executions are carried out.

This is also true in death penalty cases where the citizens participate as lay judges (saiban-in) and decide the facts and also the punishment. Lay judges do not know the situation of the death row inmates and executions, but they are asked to impose the punishment.

In an effort to let the lay judges know about the punishment at trial in deciding the sentence, some lawyers have called experts or ex-officers to testify. Here is a story about this effort.

from the Mainichi Japan:

OSAKA (Kyodo) — A former detention officer told a court Monday how death row inmates in Japan are treated and how they are executed during a trial of a murder-robbery case.

“The trapdoor on the floor opens and (death row inmates) fall at least 4 meters below and after they suffer cardiac arrest, they are left hanging for five minutes so they cannot be resuscitated,” detention officer-turned-writer Toshio Sakamoto told the Osaka District Court’s Sakai branch.

Sakamoto, known for his book “Record of an Executioner,” also said death row inmates are kept in solitary confinement except when they are allowed to exercise or take a bath.

Detention officers are informed about an execution the day before and try not to make it obvious to the inmate, he added.

Sakamoto was testifying on behalf of defendant Munehiro Nishiguchi, 52, who is charged with murdering Takeko Tamura, 67, in Sakai, Osaka Prefecture, in November 2011 and robbing her of around 310,000 yen, as well as murdering Soshu Ozaki, 84, former vice president of household product manufacturer Zojirushi Corp., in Sakai a month later and robbing him of 800,000 yen.

February 25, 2014(Mainichi Japan)

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Taiwan Association for Innocence Wins First Case….

Taiwan High Court Granted Retrial Based on New DNA Evidence

by Yu Ning Chen

In December 2013, Taiwan High Court granted Chen Long-Qi. a retrial based on new DNA Evidence. Chen became the first person to be granted retrial since the Taiwan Association for Innocence was founded in 2012.

On March 24, 2009, two escorts were raped between 4 to 6 AM in a warehouse that Chen and his friend rented for agricultural products distribution. The victims failed to identify the assailants due to alcohol intoxication.

Chen always maintained his innocence during the investigation and trial. He claimed that he left before the crime to pick up his wife, Ko, at her workplace. Ko’s timesheet corroborated Chen’s words. An eyewitness also testified that Chen was not at the scene. Despite no testimony linking Chen to the crime, the district court and high court found him guilty of gang rape with the other two co-defendants. The decision was solely based on a DNA test which concluded  that Chen “cannot be excluded “ from the semen stain found on one of the victims’ underwear . Chen was convicted of gang sexual assault and was sentenced to 4 years in March, 2013.

With help from the Taiwan Association for Innocence, Chen filed a motion for retrial in June, 2013 seeking to retest the DNA evidence. The court authorized a 23 loci STR test on the original mixture DNA sample. The new test result showed that Chen “can be excluded” from the DNA sample. Based on this new piece of evidence, the court granted his motion in December 2013. The retrial will begin this month.

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Chinese saga of wrongful conviction finally ends after 16 years

A Chinese man who was sentenced to death and spent 12 years in prison for the rape and murder of a child was awarded US$160,000 compensation after his conviction was overturned, a court said. Li Huailiang stood trial seven times and was given three different sentences for the rape and murder of a 13-year-old girl in Pingdingshan in August 2001, Xinhua reported.

The farmer was condemned to death, then death with a two-year reprieve – a sentence normally commuted to life in prison – and after that, 15 years in jail.
Each time, the verdict was subsequently overturned “due to lack of evidence,’’ but he was not formally acquitted until April this year, when he was released from prison, Xinhua said. The Intermediate People’s Court in Pingdingshan, in central Henan, granted him 780,000 yuan (US$130,000) for the loss of “personal freedom’’ for 4,282 days spent in prison and a further 200,000 yuan for “psychological damage,’’ a statement posted on its website said.
Li had claimed 3.79 million yuan in total, the statement added.

Indian man freed by Delhi High Court after 14 years in prison

Bhupender Singh walked free on Friday after the Delhi High Court acquitted him of the 1999 murder of the wife of his former employer. Singh had been convicted in 2006, after fingerprints were found in his employers house. The fingerprint evidence was highly contentious, and never dealt with satisfactorily, but the High Court has now decided that Singh can go free, because there was not sufficient evidence for the conviction.

Read more here… HC acquits man of murder 14 yrs after he was jailed

China tries to curb miscarriages of justice as anger over torture, other abuses, grows

From Foxnews.com:

Chen Keyun’s legal nightmare began in 2001 when he was accused of detonating a bomb outside a Communist Party office in his southern coastal city of Fuqing.

Chen denied committing the crime but was held for 12 years, during which he was tortured into confession and twice sentenced to death. He finally was released and exonerated this year, a case that exemplifies the miscarriage of justice that China’s Supreme People’s Court now says it wants to curtail.

Last week, it released its first set of detailed recommendations for preventing wrongful convictions: Judges should presume defendants are innocent until proven guilty, reject evidence obtained through torture, starvation or sleep deprivation and refrain from colluding with police and prosecutors.

The moves reflect Chinese leaders’ recognition that an increasingly prosperous public is demanding a more predictable and fair justice system, though party officials are unlikely to fully loosen their grasp over the courts.

“It is of significance and if adopted seriously, it will effectively help prevent the occurrence of wrongful convictions,” said Prof. Tong Zhiwei, a legal expert at the East China Politics and Law University in Shanghai. “The question is whether the regulation will be fully implemented at local levels.”

The recommendations are seen more as an effort to build a more professional judiciary, one in which judges observe legal process and make rulings that are based on sound evidence — rather than grant courts full independence.

“If courts can be more independent, then these problems can be easily solved,” said Li Fangping, a prominent defense attorney in Beijing. “This guidance can only increase their independence a little bit. On technical issues, it will be of help, but as long as there are cases where there will be intervention, it won’t be of much use.”

In China, the party controls the courts, police and prosecutors. Some judges are not trained in law, and they rarely acquit defendants for fear of embarrassing their partners in law enforcement. Experts and defense lawyers say police commonly fabricate evidence or use torture to obtain confessions.

Chen Keyun was a manager of a state-owned labor recruiter in Fuqing when a bomb exploded in 2001 outside the city branch of the party agency that investigates cadres for corruption. The explosion killed an agency driver.

Attacks on offices that represent party or government power in China are treated with great urgency, with authorities moving swiftly to solve the case and punish perpetrators to send a message of zero tolerance.

Police turned to Chen as a suspect because he previously had been investigated by the anti-graft office and punished. Five others, including Chen’s driver Wu Changlong, Chen’s wife, Wu’s former brother-in-law and two migrant workers, also were arrested for involvement in the attack.

Police detained Chen, then 48, and in the two months that followed, he said, deprived him of sleep, beat him, starved him, and dangled him for hours by strapping his wrists to iron rods on a high window.

“They treated me like less than a dog,” Chen, now 60, said in a phone interview. “I was an old Communist Party cadre who had been about to retire, I had never thought that something like this could happen to me.”

Chen said he protested his innocence until he could no longer endure the torment.

His interrogators eventually forced him to sign a confession, though he later tried to retract it, telling other investigators he had been tortured. Chen’s lawyer took pictures months later showing deep welts on his wrists. Others accused in the case also said they were tortured.

The Fuzhou City Intermediate Court sentenced Chen and Wu to death with a two-year reprieve in 2004, and three of the others to various terms of imprisonment. The defendants appealed in 2005 and several domestic newspapers reported that they might have been wrongfully convicted. The Fujian provincial high court turned the case back to the city court and ordered a retrial.

In 2006, the Fuzhou court tried the case again and upheld the suspended death sentences for Chen and Wu. They appealed again, and in 2011 the provincial court tried the case yet again. In May, the court acquitted all five defendants.

The court offered compensation of about 4.2 million yuan ($690,000) to the five of them in September but they are demanding more, as well as an acknowledgement that they were tortured.

Chen’s is one of a few high-profile cases of wrongful convictions overturned in recent months. In March, a court in eastern Zhejiang province retried and acquitted two men who were convicted in 2004 of raping and murdering a woman, after DNA evidence from another case ruled out their involvement in the crime.

The Supreme People’s Court’s latest directive is seen as building on earlier comments by its president, Zhou Qiang, on the importance of preventing wrongful convictions. Rights activists say it is a welcome move, but may not be enough to curb abuses.

“The guidelines fail to address the structural problems that create wrongful convictions — police power that goes unsupervised, the lack of judicial independence, the absence of effective remedies when things go wrong, and weak defense rights,” said Maya Wang, a Human Rights Watch researcher in Hong Kong. “Thus it will be unlikely to achieve much impact on the ground.”

 

Chinese Supreme Court Cracks Down on False Confessions and Wrongful Convictions

From voanews.com:

China’s top court has ruled out forced confessions and vowed to reduce miscarriage of justice, in a move that highlights increasing policy emphasis on legal reform.

The directive, issued by China’s Supreme People’s Court on Thursday, is intended to strengthen the rule of law in a system that many analysts agree still lacks basic elements of judicial independence.

The court says that all levels of the judiciary are required to perform their duties strictly according to the law, base their judgments on facts, and protect human rights. It lists 27 provisions, including the protection of defendants’ right of attorney, the need for trials to be open and based on legally obtained evidence, and the elimination of confessions obtained through torture.

Encouraging sign

Nicholas Bequelin of Human Rights Watch says the ruling is an encouraging sign that the government is responding to pressure from society demanding better rights protection during criminal trials.

“It gives a foothold to lawyers and legal reformers in China, it helps them put pressure on the police, on the courts, on the judicial system whenever they don’t act accordingly,” he says.

In recent years, China has introduced procedural mechanisms to guarantee defendants fair trials, including an amendment last year requiring police to allow lawyers to meet with their client within 48 hours after a request is filed.  Thursday’s court ruling is a step in that same direction – analysts say – in a system plagued by endemic problems of obtaining confessions through torture, wrongful convictions and persecution of lawyers.

Police remain powerful

But rights advocates say that despite court reforms, the powerful police in China still make the justice system unfair.  In a recent case, a Chinese official under investigation for corruption was tortured to death and drowned in a bathtub as police investigators were trying to break him into confession.

Bequelin of Human Rights Watch says that given that courts in China are often subservient to police departments, there are limits to what the courts – such as with Thursday’s provisions – can achieve.  “It is all well for the courts to say ‘oh, we are going to make sure we reduce wrongful convictions and torture,’ but the fact is they have very little leverage to do that because it is basically the police that are driving the criminal system in China,” he says.

Call for review of past cases

Li Zhuang, a criminal lawyer based in Beijing, says that to prove they are serious in implementing the documents, courts should start reviewing past cases where lawyers have presented proof of coerced testimony.

Li Zhuang was one of the lawyers targeted in a campaign against mafia in Chongqing, then the stronghold of now ousted politician Bo Xilai.  Li was charged with perjury after attempting to defend a local entrepreneur whose confession had been obtained through torture.

Li confessed wrongdoing and was sentenced to 18 months in jail.  “Contesting evidence has been provided that sufficiently overthrows that judgment, but it has been more than two years and there has been no review,” Li says. “We have to wait and see whether these provisions will be implemented on the ground. That is the next step.”  Li says there is little incentive for court officials to review cases because in many instances they have based career promotions on wrongful convictions.

In Chongqing, some of the city’s wealthiest entrepreneurs were put to jail based on confessions obtained through illegal means, and their assets were seized by the city government.  “Many assets seized during the campaign have been spent,” Li says. They used them to plant trees and organize red songs revivals. How can you give back money that has already been spent?”

Evolution of judicial reforms

The Supreme Court’s ruling comes days after China wrapped up an important party meeting and announced key reforms in a number of fields, including its legal system.  After much public pressure, party leaders pledged to scrap the system of re-education through labor – a notorious practice of administrative detention that gives the police rights to bypass courts and detain suspects without trial for up to three years.

Such amendments have been welcomed by legal scholars and professionals in China, but some believe that individual measures will be meaningless if they do not ensure independence of the legal system – which in China is still to a great extent under the yoke of the party and the public security apparatus.

Note to Yong Vui Kong post: death penalty reprieve for Chum Tat Suan (Singapore)

Prior to Yong Vui Kong (blog post here), there was another drug trafficking case where the Singapore High Court exercised its discretion under legislative amendments for drug trafficking during the sentencing hearing. The decision explains the manner by which this discretion is exercised and highlights the judge’s concerns. This was in the case of Chum Tat Suan (24 October 2013).

One of the conditions that an accused convicted of drug trafficking has to meet to benefit from this judicial discretion is that he/she must be found to be a mere drug “courier”. Recognising, among others, that this issue was “a matter of life and death” for the accused, the judge decided to give the “benefit of doubt” to the accused of being a mere “courier”, though no new evidence about this was introduced at that stage and evidence earlier adduced during trial on this point was found to be “not unequivocal”.

Ps: Thanks to CHEN Siyuan and Jack LEE from the Singapore Management University for highlighting important facts about the Chum Tat Suan case

New Evidence Found in 1966 Hakamada Case

My previous post on Hakamada Case here. This is a case from 1966. Hakamada claims his innocence from Tokyo Detention Center, where he is held on death row. He has been held in confinement for over 45 years.

From the Mainichi:

New evidence emerges in 1966 murder case: lawyers

SHIZUOKA, Japan (Kyodo) — New evidence has emerged in a 1966 murder case that suggests the man who has been convicted and is on death row for the crime may have been wrongfully accused, his defense lawyers said Sunday.

The new evidence in favor of Iwao Hakamada, 77, may provide stronger grounds in their appeal for a retrial, the result of which will be decided by the Shizuoka District Court next spring at the earliest.

The lawyers said the new evidence came to light in the witness statements of two colleagues of Hakamada who were staying at the same company dormitory at the time of the crime in June 1966. Continue reading

Japan’s Hanging Method Criticized by U.S. Occupation Officials More than 60 Years Ago

 An important document concerning the capital punishment in Japan was found recently. The document showed that the U.S. occupation officials raised concerns about the execution by hanging. The method is still used today. Read here about how the executions are carried out in Japan.

 From The Asahi Shimbun:

U.S. occupation officials criticized Japan’s hanging method

By GEN OKAMOTO/ Staff Writer

U.S. occupation officials in 1949 raised concerns about how Japan executed prisoners, saying the condemned were not dying quickly enough under the hanging method that is still used today, a document showed.

The concerns were expressed in an internal document from the General Headquarters of the Supreme Commander for the Allied Powers (GHQ) that was found in the National Diet Library by Kenji Nagata, an associate professor of law at Kansai University.

“The document shows that issues were being raised about the hanging method used in Japan from more than 60 years ago,” Nagata said.

The internal document was written by an official in the Civil Intelligence Section (G2) of GHQ and dated Sept. 2, 1949. The subject of the memo is “Executions, Japanese Prisons.”

In the document, an official in the Nagoya area is quoted as calling for a change in capital punishment “so as to effect rapid and more humane death of the subject.”

The statement indicates the official wanted Japan to employ hanging methods then in use in the United States that severed the neck vertebrae to instantly kill the prisoner.

The official in charge of prisons in G2 says in the document that the matter would be brought up with the director of the correction and rehabilitation bureau of what is now the Justice Ministry.

The document was originally kept in the U.S. National Archives and Records Administration. A copy has been kept at the National Diet Library’s Modern Japanese Political History Materials Room.

Another GHQ internal document showed that 79 people were executed during the occupation period, and the average time before the individual was confirmed dead was about 14 minutes.

Japan’s hanging method has come under fire because those executed do not die quick deaths. Critics say the method violates Article 36 of the Constitution, which states “cruel punishments are absolutely forbidden.”

In a criminal trial held in 2011 at the Osaka District Court, a former prosecutor testified, “At one execution that I witnessed while working as a prosecutor, it took about 13 minutes before the individual died.”

Japan has used hanging for capital punishment since 1873.

 

Singapore courts review death penalty convictions under amended legislation: Yong Vui Kong

I previously blogged on the 2012 legislative amendments to Singapore’s Penal Code and Misuse of Drugs Act, which give Singapore judges some discretion over imposing the death penalty in cases of murder and drug trafficking – offences that previously carried the mandatory death penalty. Singapore Courts have been reviewing cases and deciding which convicted persons may have their death sentences replaced under these amendments.

Among the cases reviewed so far is the high profile case of Yong Vui Kong. Since his 2008 conviction, locally-based activists in Singapore have ceaselessly campaigned for the reconsideration of Yong’s case based on his circumstances. On 14 November 2013, the Singapore High Court reduced Yong’s death sentence to life imprisonment and 15 strokes of the cane.

As mentioned in my earlier post, these 2012 legislative amendments, by circumscribing the application of the death penalty, will positively impact investigations into possible wrongful convictions. The only independent organisation specialising in such investigations in Singapore is the Singapore Innocence Project, which was established by students from the National University of Singapore and formally launched in May 2013. Though an imprisonment based on a wrongful conviction can seldom be truly compensated, at least, in cases of imprisonment, those found to be wrongfully convicted will be alive to experience relief and vindication.

Convictions quashed on application of Singapore Attorney General’s Chambers

An interesting case was heard by the Singapore High Court in October, 2013. The Singapore Attorney General’s Chambers (AGC) made an application to the High Court to review and set aside the conviction of Thomas Tay, who had been sentenced six years ago under the Securities and Futures Act. The High Court quashed Tay’s convictions and returned him the $240 000 fine he had paid.

The AGC had applied for a review of Tay’s case based on the acquittals of other individuals linked to Tay’s case.

This is an interesting case of criminal revision being initiated by the Singapore AGC, instead of by the Court or the accused. Based on Singapore’s written laws (as opposed to common law), a criminal case that has exhausted the appeals process can presently only be revisited based on S. 400 (1) of Singapore’s Criminal Procedure Code. This provision allows the High Court to study the record of criminal proceedings brought before any Subordinate Court to satisfy itself of “the correctness, legality or propriety of any judgment, sentence or order recorded or passed and as to the regularity of those proceedings.” Note that under S. 400 (1), this ability to review cases is limited to the High Court and only applies to cases previously heard before Subordinate Courts. S. 400 (1) therefore does not cover many serious offences which carry severe penalties and fall within the High Court’s original jurisdiction. It was fortunate that Tay’s case fell within the narrow limits of S. 400.

Though it is encouraging that the AGC took the initiative to apply for a review in the Tay case, and though the Singapore Court of Appeal has recognised the possibility that it may review cases to prevent wrongful convictions, the Tay case shows that there is need for legislature to be passed in Singapore that clearly recognises the ability Singapore Courts to review criminal cases to prevent wrongful convictions or serious injustices, regardless of the court before which the case was first heard and regardless of the lapsing of appeal timelines.

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Exoneree on a Lecture Tour in Japan

From Fernando Bermudez:

 I Cannot Take Off My Straw Sandals

                                                                                       By Fernando Bermudez

 Strong Hugs. Wiped tears. Repeated reassurances. Through the eyes of my children, my emotional return from Japan reflected more accomplishment than exhaustion after lecturing in 9 Japanese cities from Tokyo to Okayama throughout October 2013. In sharing my 18-year wrongful incarceration story in New York until exonerated in 2009 (due to mistaken eyewitness identifications and police and prosecutorial misconduct), my lectures at Japanese bar associations and universities urged Japan to abolish its death penalty and reduce relying on confessions to secure Japan’s 99% conviction rate, which have caused several wrongful convictions and exonerations in Japan due to false confessions.

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Fernando Bermudez in Hiroshima

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