Penang man on Indonesian death row awaits fresh hope in case review

A Malaysian on death row for seven years in Indonesia over a drug conviction has been given fresh hope as a court in West Jakarta prepares to hear his case review early this month.

Tor Eng Tart from Balik Pulau, Penang, was found guilty on Sept 29, 2016, of possessing 140,000 ecstasy pills in two suitcases with the intention of distribution.

Since the dismissal of his final appeal in February 2017, the 49-year-old has been awaiting his execution at Bali's Nusa Kambangan maximum security prison.

He was arrested, charged and convicted together with his wife - Ooi Swee Liew - who died in detention at a women's prison in Lampung, Sumatera, on Aug 5, 2020. She was 46 at the time of the arrest.

Indonesia's Community Legal Institute submitted Tor's review through lawyers assigned to his case, and that of Ooi, after their appeal was rejected.

Lawyer Nixon Sinaga is representing Tor, while lawyer Yosua Octavian assisted Ooi.

Both Nixon and Yosua spoke to Malaysiakini on the sidelines of a two-day National Conference on Sentencing Council and Mitigation for Death Penalty in Malaysia, organised by the Anti-Death Penalty Network (Adpan), in Petaling Jaya.

They contended that a number of circumstances were against Tor and Ooi and that this contributed to the issuing of the death sentence.

Among the factors they cited were a lack of sentencing guidelines, no Hokkien-language interpreters for the couple and the judge not considering the background and mitigating circumstances of those involved, such as Ooi’s near illiteracy.

Factors not in favour

Throughout the interview, the lawyers referred to Tor and Ooi as "pakcik and makcik" (uncle and aunty).

"In the death sentences against pakcik and makcik, we see that a judge's role in evaluating a person's vulnerabilities became important.

"That means not only to establish the facts: Is it true they trafficked an amount of drugs? Is it true they received drug money?" said Nixon.

"What often happens in Indonesia is that judges, in delivering their sentences, ignore a person's background," he added.

Through cooperation with Adpan, Yosua said they were able to access the couple’s family members in Penang, as well as obtain various documents that supported their arguments based on the couple’s socio-economic background.

Among others, he said Ooi was barely literate as she only received primary education at a Chinese-type school, and was married off to another man while still a teenager.

"How did she get involved in the case? She was a diabetic and had a range of other ailments.

"She had given up on treatment in Malaysia, so pakcik took her to Indonesia and told her there was an alternative medicine practitioner," said Yosua.

According to case facts recorded as part of the written judgment in the couple's appeal, Tor was instructed to fly to Indonesia with Ooi and made arrangements to receive the ecstasy pills, which would then be passed on to another Malaysian already in Jakarta.

The couple first arrived in Jakarta from Penang on Dec 14, 2015.

An alleged sum of RM5,000 was said to have been deposited into Ooi's account for the couple to purchase their flight tickets and accommodation costs.

Subsequently, another deposit of RM5,000 was made after their arrival. This was allegedly used to purchase two large suitcases - one found to contain 72,000 ecstasy pills and the other 68,000 ecstasy pills.

Two weeks later they were arrested in their hotel room where the drugs in the two suitcases with a total weight of 51,248kg were kept.

Another Malaysian arrested

Court documents identified another Malaysian who was arrested in connection with the case but Yosua told Malaysiakini the man had also died on death row pending execution.

It was stated that a drug enforcement unit from Jakarta Barat had acted based on an anonymous tip-off on Tor's alleged involvement in selling ecstasy.

"We uncovered many instances that showed makcik’s vulnerable position,” Yosua said, based on their follow-up investigations on the couple's case.

For example, Yosua said they discovered a bankruptcy order against Tor, which explained why he had no active bank account and the alleged drug money was instead deposited into Ooi's Maybank account.

Nixon explained that while Ooi was found guilty during her trial, Tor had pleaded guilty to his charge.

Advocating for fair sentences

On the upcoming review, Nixon said that grounds for their submission included arguing a denial of his rights to a fair trial due in part to the alleged failure of the court to provide a translator capable of speaking the Hokkien dialect used by the couple.

"To this day, Indonesia has no sentencing guidelines... We never promised anything to our clients, but what we want to stress is that the present system cannot continue.

"The death penalty in Indonesia will not be abolished just based on our arguments in this one case.

"But we are advocating for a fair sentencing process, not just entirely based on case facts and physical evidence," added Nixon.

In Malaysia, the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 or Act 847 came into force on Sept 12.

This came five months after the Dewan Rakyat unanimously agreed to pass a bill to abolish the mandatory death penalty law in Malaysia.

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