‘Flagrantly incompetent’ lawyer was terminally ill, says counsel

 

The Federal Court quashed the conviction of a Yemeni lawyer charged with drug trafficking, saying his lawyer’s incompetence had jeopardised the trial.

PETALING JAYA: A Sabah lawyer who represented a Yemeni lawyer during a drug trafficking trial was unable to put up a credible defence as he was suffering from a serious illness, it has been revealed today.

The lawyer, who has since died, did not inform his client about his health status, Rahmat Hazlan, who assisted senior lawyer Muhammad Shafee Abdullah at the appeal stage, said.

“The defence was badly done which led to the conviction of the accused,” Rahmat told FMT.

He said the Yemeni embassy then approached Shafee & Co to conduct the appeal.

Yesterday, the Yemeni lawyer, Yahya Hussein Mohsen Abdulrab, was spared the gallows for allegedly trafficking in 1.8kg of methamphetamine. He was alleged to have committed the offence at the arrival hall of the Tawau airport at about 11am on July 25, 2013.

The Federal Court allowed his appeal to quash his conviction by the High Court, citing the incompetence of his lawyer during the trial.

A three-member bench chaired by Chief Justice Tengku Maimun Tuan Mat said Hussein’s previous lawyer had been “flagrantly incompetent”.

Tengku Maimun said the decision was based on further evidence allowed by the Court of Appeal which showed the lawyer’s incompetence.

The Court of Appeal had said in its judgment that Hussein’s lawyer had deprived him of a fair trial, resulting in a miscarriage of justice.

Tengku Maimun, however, said the appeals court was wrong to order a retrial instead of a complete acquittal.

The additional evidence, she said, showed that there was more than a reasonable doubt in the prosecution’s case and that even a reduction to the lower offence of possession was unsafe.

Hussein’s defence was that he had been requested to carry a briefcase by a person named Mickey and did not have knowledge of the bag’s contents, a matter which ought to have been raised by his lawyer.

The Federal Court was also of the opinion a retrial would result in Hussein languishing further in jail.

Shafee obtained a temporary fiat from the High Court of Sabah and Sarawak to represent Hussein in the Court of Appeal and Federal Court.

This is because lawyers from the High Court of Malaya cannot practise in both territories without a licence, a condition imposed when Sabah and Sarawak, Malaya and Singapore formed Malaysia in 1963.

Lawyer Kitson Foong said senior criminal law practitioners from the peninsula may apply for a licence but were confined to representing clients in capital punishment cases only.

Meanwhile, the Sabah Law Society said that just like in the peninsula, an accused person in the state could appoint his own lawyer regardless of the counsel’s experience and abilities.

Its president Roger Chin, however, said a lawyer assigned by the court to conduct trials and appeals must fulfil a minimum criteria.

“Those appointed are lawyers who have criminal law experience as the Bar (Sabah Law Society) would have provided the courts with a list to choose from,” he told FMT in a text message. - FMT