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Dealer gets overdue day in court

Dealer gets overdue day in court

TWENTY minutes was all it took for Men Hun to be convicted of drug pushing after

he spent 492,480 minutes - nearly a year - in T3 prison before his case went to trial

on Feb 3.

His defense team argues that his prolonged detention was "absolutely illegal

and unconstitutional," and that the case should have been dismissed as soon

as the six-month statutory limit on his detention expired in August.

"Under the Law, the case should have been dismissed and it should never have

gone to trial," said Christina Poulter, a legal adviser with Cambodian Defenders

Project, a US-funded program. "The judge should have thrown the case out because

our client was held over six months."

But those Cambodian justice officials, who stand accused of breaching local legal

codes in the detention of Hun, claim they could no longer wait for the US Drug Enforcement

Agency (DEA) to send results of lab tests done on a sample of the substance found

in his possession when he was arrested in Phnom Penh on Feb 26, 1996.

"We have been accused [in this case] of violating human rights," said Om

Sarith, the trial judge who slapped a one-year, retroactive sentence on Hun that

ends on the anniversary of his arrest.

"The investigating judge waited many months for the results of the test, but

so far there has been no response from Washington," he added. "We regretted

that we had to detain the defendant for so long, but scheduled the trial for today

because we could no longer wait for those results from laboratories in the US."

According to photocopies of a DEA document shown to The Post, Thuong Ol, the investigating

judge assigned to the case, officially sent the sample for testing on May 14, 1996.

Hun's lawyers, as well as the judges presiding over the case, allege that the Municipal

Court never received results of those tests.

At press time, the US Embassy declined to say what happened to this lab test.

"We don't comment on particular cases under the jurisdiction of Cambodian courts,"

a spokesperson said.

"The US government endeavors to assist the Royal Government of Cambodia by doing

analyses of confiscated substances. Obviously this can be a long process. Tests involving

the shipment out of substances can take varying lengths of time depending on various

factors, including backlogs. For this reason, the US government is funding the construction

of a drug lab in Cambodia so that analyses can be done in a timely manner."

The war on drugs and the championing of human rights are pillars of US foreign policy

which, according to observers, don't always complement one another.

In December, the National Assembly passed a controversial Drug Law many see as US-driven.

Critics charge that it gives the Cambodian security services carte blanche for human

rights abuses. They allege that Washington pressured Phnom Penh - already placed

on its blacklist of countries suspected of producing or trading in narcotics - into

coming down hard on drugs, otherwise US aid might be scaled back.

At the same time, the US State Department has just released its latest worldwide

report on human rights, in which there is a detailed chapter on Cambodia. Highlighted

among other concerns about violations of rights are prolonged detention, searches

and seizures without warrants, and denial of fair public trials.

In Monday's trial of Hun, 34 - convicted for having and trying to sell 850gm of heroin

- the defense argued the case should not go to trial and that it should be dismissed.

According to Cambodian Defenders, under statutory laws of the Constitution and UNTAC's

criminal code, the investigating judge has four months to gather all evidence to

be used in court proceedings, and can authorize a two-month extension at his discretion.

But after that - regardless of whether DEA test results have been obtained - the

suspect must be released.

Several motions for dismissal were lodged with Thuong Ol, the investigating judge

on the case, after the six-month limit was up, but were rejected on the grounds that

the suspect had to remain in police custody until DEA results came in.

Pressed on whether Ministry of Justice officials (MOJ) ordered him to keep Hun locked-up,

Ol withheld comment but maintained that follow-up requests for lab results were never

acknowledged by DEA.

As one official admitted, MOJ admits it is doing its best to be tough on drugs, even

if this means doing away with human rights.

"I am hard on drugs," said Uk Vithun, secretary of state for Justice. "For

certain criminal affairs - heroin being a criminal affair - a statutory limit of

four to six months is not sufficient. There are many things that need to be undertaken

in investigating [drug cases] that take more than six months. Let the competent authorities

do their work."

According to Hun's lawyers, the evidence presented against him by the state prosecutor

was also weak.

The photocopy of another document seen by The Post that clinched his conviction was

a statement issued by the Ministry of Interior (MOI) on Feb 26, 1996, the day of

his arrest.

It is based on an alleged drug test done on a sample of white powder taken from Hun

by the arresting officer.

Khov Chantha, Hun's defender, elaborated on the case he presented in court:

Three bags containing the powder were left at his client's home by an unidentified

visitor.

The arresting police officer later visited Hun, posing as a heroin buyer. The policeman

allegedly told Hun he would take a sample for testing to check its purity. They set

a date for the sale of alleged heroin for Feb 26, when Hun was picked-up by police.

Hun's lawyers claim this was a flagrant case of entrapment.

"As far as I'm concerned, no chain-of-custody was presented in court,"

Cambodian Defenders' Poulter said.

Absolute proof that the evidence presented by prosecution hadn't been tampered with

was not established, she explained, adding that Chantha was not given a chance to

cross-examine those experts who allegedly carried out the lab test at MOI's anti-drug

unit.

Even Om Sarith, in whose hands Hun's fate dangled on Monday, conceded that lab tests

done at MOI could not be taken as irrefutable proof.

"In Cambodia, we do not have sufficient material to carry out precise tests

in criminal matters relating to drugs," he said. "But when the results

from labs in the United States are late, we must rely on tests done at the Ministry

of Interior's anti-drug unit as evidence."

Meanwhile, Stephane Assia-wah, 33, a Ghanaian arrested in Phnom Penh on April 4,

1996 on charges of drug dealing, is still awaiting trial in a T3 cell.

A sample of the powder taken from him was also sent to DEA along with the sample

taken from Hun's arrest.

Ol, who has also been assigned to this case, is still awaiting an answer from Washington.

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