Written by: Averroes
(1.0) Introduction
Yahya Hussein Mohsen Abdurab aged 31, was spared from gallows when he was charged for trafficking 1.8kg of methamphetamine. He was accused of committing the offence at the arrival hall of the Tawau airport around 11am on July 25th 2013.
The charge was under section 39B(1)(a) of the Dangerous Drugs Act 1952 that carries a mandatory death sentence upon conviction.
A Sabah lawyer who represented a Yemeni national in a drug trafficking case was unable to proffer credible evidence as he suffered from terminal illness. The lawyer who died, did not inform his client of his health status. Rahmat Hazlan who assisted Muhammad Shafee Abdullah argued on that point.
Shafee Abdullah had to obtain a temporary fiat from the High Court of Sabah and Sarawak to represent Hussein in the Court of Appeal and Federal Court, since lawyers from Malaya cannot practice in Borneo without a license.
Lawyer Kitson Foong also added that, senior criminal law practitioners from Malaya may apply licenses, but limited to representing clients only in capital punishment cases only. However, the Sabah Law Society state that an accused can appoint any lawyer, even from Malaya or regardless of his experience and abilities.
(2.0) Decision of the Federal Court in Yahya Hussein case
Previously, the Court of Appeal decided that Hussein's lawyer deprived him of a fair trial, causing a miscarriage of justice. This was supported by Chief Justice Tengku Maimun which she concurred with the evidence admitted from the Court of Appeal. The previous lawyer was flagrantly incompetent.
The Federal Court panel consisted of three chairs, which the other two were Mohd Zawawi Salleh and Nallini Pathmanathan. However, the apex court did not agree with the Court of Appeal on the issue that, it was wrong to order a trial, but instead a full acquittal.
Apart from that, there was reasonable doubt in the prosecution's case that a reduction to the lower offence of possession was unsafe.
Hussein's defence was that he requested to carry a briefcase by a person called Mickey and did not know the contents. Additionally, the Federal Court opined that a retrial would be detrimental as he would be jailed longer. This is because, Hussein had already been incarcerated for more than eight years.
(3.0) Legal Analysis
(3.1) Malaysian Experience
(3.1.1) Federal Constitution
The pinnacle argument which is paramount above all legal arguments would be article 5(3) of the Federal Constitution. It provides that 'where a person is arrested he shall be informed as soon as may be of the grounds if his arrest and shall be allowed to consulted and be defended by a legal practitioner of his choice'.
This constitutional provision is interpreted to also include a right to fair trial as to secure a safe conviction without igniting flagrancy toward miscarriage of justice.
(3.1.2) Case laws
This is not the first time the court has adduced this legal principle. Scouring over the Court of Appeal decision in Public Prosecutor v Shahrul Azlan bin Abdul Haaf & Ors [2019] MLJU 569, the cross-examination of the two material witnesses were only left to the legal assistant of Messrs Jayaraj & Co, which does not qualify the criteria of an assigned counsel under Practice Direction No. 5 of 2013.
Mr. T. Jeyaraj was not present himself to help his legal assistant to conduct the cross-examination, which causes an unfair trial for their client. Also, there was procedural unfairness, since there was a conflict of interest even when they were assigned to the first and second respondents, especially when they were charged jointly.
Mr. T. Jayarah, former counsel for the second respondent and now only acting for the first respondent holds possession of privileged information that could prejudice the second respondent to the advantage of the first respondent.
The Sharhul Azlan case also referred to other precedents. At paragraph 16, the court referred to the Federal Court decision Shamim Reza bin Abdul Samad v. PP [2011] 1 MLJ 471, that;
"The appellant here complained before us that his counsel was incompetent, a state of affairs which had resulted in an unfair trial, and culminating in his conviction... the aggrieved party must benefit from the outcome in the event we conclude the assigned counsel was indeed incompetent."
Furthermore, the Shamim Reza case was given the opportunity by Gopal Sri Ram, FCJ by delineating important aspects to determine the test for incompetent lawyers, evoking miscarriage of justice. Among them would be;
(i) Such incompetence must be flagrant in the circumstances of the given case;
(ii) It must have deprived the accused of a fair trial thereby occasioning a miscarriage of justice
To complement these two aspects for the incompetent lawyers test, the appellate court must take into account of the conduct of the counsel as a whole and not merely to his or her failure in one or two departments.
(3.2) Foreign Perspective
Another cited authority was Chong Ching Yuen v HKSAR [2004] 7 HKCFAR 126, whereby the Court of Final Appeal states that the incompetence of defence counsel had compromised the fairness of the appellant's trial. Incompetence is used as a defence, which the state of affairs in which a conviction is regarded as unsafe or unsatisfactory.
To determine whether a counsel is incompetent or not, it is based on the standard of trial. The court in that case referred to three factors.
Firstly, it is the relevant parcel of constitutional rights under the Basic Law and in the Bill of Rights enshrined under article 39 of the Basic Law.
Secondly, it is the traditional standard of the common law.
Thirdly, is from public expectations.
The court after perusing these three reasonings came forward and decided that these factors are imperative to determine whether the trial or system insisted is one which is of a fair trial. When the defence incompetence is established, resulting in a less fair trial, that would justify a ground for quashing a conviction.
In Boodram v The State of Trinidad and Tobago [2001] UK PC 20;; [2002] 1 Cr App R 103, the court produced an obiter dicta, that the counsel's misconduct was extreme and defendant was convicted... the defendant is not given the benefit of due process, which incites miscarriage of justice as there has been no fair trial.
The breaches are of fundamental stature, which has to be rendered otiose, hence the conviction had to be quashed.
In Sankar v The State of Trinidad and Tobago [1995] 1 WLR 194, the Privy Council advised that in extreme circumstances which the defendant is extirpated of the necessities of a fair trial due to his own advocate whom carried the responsibility, may to quash the conviction if a miscarriage of justice were purported.
Finally, Ogbodo Sunday Tochukwau v. PP & Other Appeals [2016] 9 CLJ 686 clarify that the dispensation of justice covers procedural and substantive law. Both of these cannot be neglected as the right to be defended by a counsel requires them to subsist.
(4.0) Conclusion
To conclude, the incompetence lawyer test is applied and forms part of Malaysian common law and precedents. Profoundly, it also forms the basis as one of the rights as under article 5 of the Federal Constitution for a fair trial.
Though, in order to establish and satisfy this test or criminal defence, one would have to still fulfill all the required elements or factors to benefit from the acquittal and quash the conviction, as it depends on every iota of facts and circumstances of the alleged offence.
References;
Khairiah N. Karim (July, 2021) Yemeni in drug trafficking case escapes death after freed by Federal Court. Retrieved from, https://www.nst.com.my/news/crime-courts/2021/07/707995/yemeni-drug-trafficking-case-escapes-death-after-freed-federal
V Anbalagan (July, 2021) Flagrantly incompetent’ lawyer was terminally ill, says counsel. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/07/14/yemeni-escapes-gallows-due-to-flagrantly-incompetent-lawyer/
V Anbalagan (July, 2021) Yemeni escapes gallows after court rules he had an ‘incompetent lawyer’. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/07/13/yemeni-escapes-gallows-after-court-rules-he-had-an-incompetent-lawyer/
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