Yahya Hussein Mohsen Abdulrab v. PP [2021] 1 LNS 1246 

Federal Court Putrajaya

(Flagrantly incompetent lawyer resulting in the appellant’s conviction)

• The accused was arrested with a briefcase containing drugs and charged under S.39B DDA.

• The High Court Tawau convicted and sentenced him to death.

• The Court of Appeal quashed the sentenced due to the accused’s counsel flagrant incompetent and order for retrial.

• The Federal Court set aside the retrial and order for a complete acquittal.

• Article 5(1) fundamentally guarantees the right to a fair trial ‘save in accordance with law’.

• It follows that if an accused person can establish a breach of this right then, in the words of Sandhawalia, CJ in Madheshwardhari Singh v. The State, he would be entitled to an unconditional release and the charges levelled against him would fall to the ground.

“In extreme cases, assessed objectively, where counsel has acted far below the accepted standard such that his flagrant incompetency jeopardises the accused person’s right to a fair trial, the overall purpose of Article 5(1) of the Federal Constitution – which is to deprive life or personal liberty only according to law – would be rendered illusory…”

• The focus of the inquiry by the court is not on the advocacy skills or performance of trial counsel, rather it is the acts or omissions themselves as they impact on the fairness of the trial and whether the result constitute a miscarriage of justice. In those circumstances, the just thing to do would be to set aside the conviction.

• The defence counsel failed to cross during prosecution case, refused to follow accused narrative instead mount another defence, crucial witness was not called and defence counsel barely met the client.

• Based on the established principles of fairness, the Court of Appeal ought not to order the case for retrial given that it has made a finding of flagrant incompetence on the part of the appellant’s trial counsel which had resulted in a miscarriage of justice. Applying Shamim Reza as it did, that finding is sufficient ground for the Court of Appeal to order that the appellant be acquitted and discharged.

• Conviction for criminal offence can be set aside if it is proven that the counsel has acted flagrantly incompetence.