LETTER | Lawyer incompetence can result in death

LETTER | Malaysians Against Death Penalty and Torture (Madpet) highlights that a lawyer’s incompetence could have resulted in a 31-year-old man being hanged to death.

This is proof that an innocent person could end up being a victim of a miscarriage of justice due to the fallibility of lawyers and other human persons involved in the administration of justice.

Yahya Hussein Mohsen Abdulrab, 31, was sentenced to death by hanging in 2014 by the Tawau High Court in Sabah. He was found guilty of trafficking 1,800 grams of Methamphetamine.

Then, in 2020, the Court of Appeal quashed the conviction and sentence against him because of the flagrant incompetency of his counsel during the High Court trial. The Court of Appeal found Yahya was deprived of his right to a fair trial and ordered a re-trial.

The Federal Court on Tuesday (July 13) acquitted Yahya who was on death row. The court agreed that the previous counsel was 'flagrantly incompetent', but it held that the Court of Appeal was wrong to order a retrial instead of a complete acquittal.

Yahya, a Yemeni, was simply very lucky that he could afford and/or find a competent lawyer, different from the lawyer who defended him at the High Court who then made the needed application for the adducing of new evidence and also appealed the decision to the Court of Appeal. If the same lawyer at the High Court had handled the appeals, he may still be on death row.

The Court of Appeal, in its decision, raised several issues that led it to conclude that the lawyer handling the case during the High Court trial was ‘flagrantly incompetent in the handling of the trial for the Appellant. This has also deprived the Appellant of a fair trial resulting in a miscarriage of justice...’

Amongst these issues, as sighted from the Court of Appeal judgment, were:

a) Failure to raise the accused's version of how he came into being in possession of the said drugs by ‘…not proposing it to the prosecution's witnesses…’. The later attempt to raise it when the accused was called to testify was found by the court to be ‘…only an afterthought considering this was not put before the prosecution's witnesses…’

b) Failure to call material Defence witness that could corroborate the accused's version of how he came into being caught with the drugs;

c) Failure to ‘…make an oral submission at the end of the prosecution's case and did not put up a written submission at the end of the defense's case…’

d) The Court also found it was ‘….too risky for the Appellant's counsel to advance only one defence for the Appellant i.e. the weight of the drugs…’

If Yahya did not manage to get another lawyer to take over the case from the previous lawyer, he would most probably still be on death row awaiting execution.

How many other accused are on death row, or have been executed simply because of the failings of their lawyers?

In our administration of justice, mistakes can be made by the police, prosecutors, judges, lawyers, and others, and the risk of a miscarriage of justice is there, and more worrying is when the victims could be executed.

If the prosecution and lawyers of the accused fail to adduce relevant facts and evidence in the court of the first instance, it is very difficult to bring in new evidence at a later stage or during appeals.

In this case, the failure to challenge prosecution witnesses, and just raising the accused's version of how he came into being in possession of the said drugs during the defence case was fatal – leading the judge to believe it to be merely an afterthought.

Judges too have the right to question witnesses but rarely is this right utilised. This right exercised may overcome the failings of prosecutors and lawyers.

Poverty and the ability to get competent lawyers can be most prejudicial to accused persons in criminal trials, where a finding of guilt can lead to incarceration in prison and even death.

“No criminal justice system is perfect. You take a man’s life and years later, you find out that another person did the crime. What can you do?” said Nazri Abdul Aziz, former de facto law minister.

We also recall the case of Chiang Kuo-ching, who was executed in Taiwan in 1997 after being convicted of sexually abusing and murdering a five-year-old girl, and in 2011, Taiwan’s Ministry of Justice admitted that Chiang had been executed in error.

Therefore, Madpet reiterates the call for the abolition of the death penalty.

Madpet also calls for the amendment of laws that will make the adducing of new evidence in criminal trials, especially in capital punishment cases, during appeals be made easier as failures of lawyers, prosecutors, and judges at courts of the first instance lead to imprisonment, whipping, and even death.

Madpet also calls for action to be taken against lawyers and prosecutors who fail to ensure the court is made aware of all the relevant facts that will lead to justice being done.

Madpet calls for the abolition of legal presumptions that shift the burden to accused persons to prove that drugs found in their possession did not belong to them, or was in their knowledge, or was used for drug trafficking - an offence that carries the death penalty.

CHARLES HECTOR is a spokesperson for the group Malaysians Against Death Penalty and Torture (Madpet).