The presiding judge in Kem Sokha’s treason trial offered to postpone the hearing for three weeks to give the opposition leader’s lawyers time to examine evidence in the case file, after defense lawyers complained that they had not got the evidence on time nor had they been able to review it.
Kem Sokha’s trial kicked off its fifth week of hearings on Wednesday morning with lawyers on all sides continuing to argue and fight over two main issues – admissibility and veracity of evidence sourced from anonymous Facebook page “Kon Khmer” and the prosecution’s reluctance to exactly identify evidence it was using to cross examine Kem Sokha.
The second issue turned into heated back-and-forth, after defense lawyers asked prosecutor Plang Sophal to exactly identify the piece of evidence in the case file he was using to question Kem Sokha. The evidence was seemingly a joint statement by Kem Sokha and opposition leader Sam Rainsy announcing the formation of the Cambodia National Rescue Party.
The court had just begun discussing Kem Sokha’s career and activities from 2012, starting with the formation of the CNRP, to 2017, right before his arrest.
A request from defense lawyer Meng Sopheary to exactly identify to the evidence led Plang Sophal to only say “document no.5,” with the defense lawyer asking for the exact location of the evidence in the case file.
“My job is it to tell you the document number not exactly where it is,” Plang Sophal shot back.
“There are a lot of documents so I am asking for help to find the document,” Meng Sopheary said in return.
Interjecting, presiding judge Kuy Sao said that if the defense needed time to look for the document he would permit it, but also proceeded to suggest they take a two- or three-week recess to allow the defense to review all the evidence.
The defense immediately rejected any postponement of the trial, instead asking for more specificity when referring to documents in the case file. Defense lawyers have consistently complained about not getting the case file on time, giving them little chance, they said, to counter evidence produced by the prosecution and government.
At one point, judge Kuy Sao asked a court clerk, who did not identify himself, to address the court and recollect if the defense had asked for the case file on time.
The court clerk then seemed to accuse the defense for asking the clerks to submit the case file as soon as possible, which was not possible he said because they had to follow certain procedures to copy the evidence before handing it over.
“The copying [process] is not about dropping it at the copy shop,” the court clerk said. “It has to be done carefully.”
At the start of the hearing, the defense again took umbrage with the prosecution’s use of evidence from the anonymous “Kon Khmer” Facebook page, calling the evidence inadmissible and unverified.
The court then spent the next 80 minutes going back and forth to debate the admissibility of the evidence, with Kem Sokha saying little during bickering. The one time he asked to comment on the issue, the presiding judge asked him to stop speaking.
The prosecution and government lawyer continued to push that if investigating agencies and the investigating judge had reviewed the evidence and used it in their reports, then it had been found to be accurate and admissible in the trial.
The prosecution has so far not provided information to show that any forensic analysis was conducted on contents of the Facebook page, its ownership or its origins – a point raised by defense lawyer Pheng Heng.
“How is it being used as evidence against my client?” Pheng Heng said. “What if some people created the page to frame my client?”
“You should have gone and interviewed the owner of the ‘Kon Khmer’ Facebook page and ask him to testify,” he added.
The council of judges, under Article 321 of the Criminal Procedures Code, have the “free choice to determine the value of the evidence submitted to the court on the ground of its true belief.”
However, the council of judges did not take a concrete stand on the defense’s objection, leaving it to the government lawyers and prosecution to make the case for admissibility of the evidence.
“It is not even 10 percent of the evidence,” judge Kuy Sao said. “Why are you talking about this over and over again.”
The prosecution has used a Facebook post from “Kon Khmer” while questioning Kem Sokha about his daughters and their education abroad. At the time, the opposition leader refused to answer questions based on “information sourced from Facebook.”
In between the two time-consuming arguments, the government played a video of opposition leader Sam Rainsy speaking to purportedly party supporters in Massachusetts, US, in 2011.
In the 50 second clip, he is heard talking about “unseating Hun Sen from his treasonous position” and wanting “Hun Sen to leave his position as soon as possible.”
Both government lawyers and the prosecution attempted to link Sam Rainsy’s speech to Kem Sokha, by suggesting that Kem Sokha’s agreement to merge their parties – and form the CNRP – meant that he agreed with Rainsy’s speech.
“I don’t know about this. I have not followed everything he has ever said,” said Kem Sokha in response.
The court will resume for the afternoon session, where questioning will continue to revolve around the formation of the CNRP till the 2013 national election.