This was a drug trafficking case that originated from the High Court. The appellant was convicted and sentenced to death for the charge of trafficking in dangerous drug, to wit 1,800.28 grammes of methamphetamine, an offence under s 39B(1)(a) of the Dangerous Drug Act 1952 punishable under s 39B(2) of the same Act. The appellant’s grounds of appeal were not directed against the decision. Instead, the submission before this court was impressed to highlight that the previous counsel handling the case in the High Court for the appellant was incompetent in defending the appellant against the charge. Thus, the only issue requiring consideration was whether the conviction and sentence by the trial judge were safe considering the incompetency of the appellant’s previous counsel in handling the case at the trial court.
Held (the appellant’s conviction and sentence quashed; and the case was remitted to the High Court for a retrial before another High Court Judge):
(1) The leading authority on this issue was the Federal Court case of Shamim Reza Abdul Samad v. PP. First, of importance regarding this case was the recognition that a conviction for a criminal offence could be set aside if it was proven that counsel representing the accused had been incompetent in handling the case as a whole and in particular, presenting the defence of the accused resulting in the said conviction. Second, this case laid down two conditions that must be satisfied in order to find that counsel of an accused person had not been up to the mark in defending the accused against the charge he was facing: (i) the incompetence must be flagrant; and (ii) it had deprived the accused of a fair trial. The case also stressed that the conduct of counsel handling the case must be viewed as a whole and it would not be sufficient to find the said counsel incompetent if he was found merely wanting in one or two aspects. The case also noted that the overarching principle in applying this law was that the duty of the court in achieving justice should always be in the forefront despite the contention that counsel might have been incompetent. This was taken to mean that at the end of the day, the courts should still bear in mind whether justice was served in view of the totality of the evidence adduced, notwithstanding the manner the trial had been handled by the accused’s counsel. (paras 35-38)
(2) In the instant case, the appellant’s counsel was, on the facts, flagrantly incompetent in handling the trial for the appellant, which had also deprived the appellant of a fair trial resulting in a miscarriage of justice. The conduct of the trial by the appellant’s counsel was flagrantly incompetent as a whole and not confined only to one or two areas. The appellant’s defence that he was requested to carry the briefcase by a person named Mickey and as a consequence did not have the knowledge that the drug was contained in the same was so fundamental that it ought to have been raised by the appellant’s counsel. The failure to raise it had caused the appellant to be convicted for a very serious offence, resulting in the death penalty. In light of the circumstances, justice was best served for the conviction to be quashed as it would not be safe to affirm the conviction and sentence despite the evidence that had been adduced against the appellant. (para 52)
(3) Having quashed the conviction and sentence against the appellant because of the flagrant incompetency of the appellant’s counsel, it would be most appropriate to order that a retrial be held before another High Court Judge. To order the appellant to be acquitted and discharged for the offence charged, would not be a fair and appropriate decision to be made considering the circumstances of this case. If this order were made instead, it would be far too easy for an accused to be acquitted and discharged, ie just by engaging counsel who would by design not handle the case properly and with certain standards expected in defending an accused person. The appellant had been detained in prison for a long time and might have to stay in prison for some time more, awaiting the retrial. However, balancing the interest of the State and the appellant’s interest, it was only fair for a retrial to be ordered instead of letting the appellant go scot free by acquitting and discharging him just because of his own counsel’s improper handling of his defence at the High Court. In fact, as shown from the factual matrix of this appeal, the decision to set aside the conviction and sentence against the appellant had to be done not on account of the prosecution’s fault or the erroneous findings of the trial judge but solely because of the flagrant incompetency of the appellant’s own counsel. Therefore, in the interests of justice, a retrial before another High Court Judge would be appropriate and fair. (paras 53-54)
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