Public Prosecutor v Shahrul Azlan Bin Abdul Jaffar (K-05(SH)-135-02/2018)

(a) At least on three occasions during the prosecution’s case when two material witnesses for the prosecution gave evidence, Mr. T. Jayaraj was not personally present to conduct the hearing on behalf of the first and second respondents. Instead, it was conducted by an assistant who is not qualified under the Practice Direction No. 5 of 2013 appearing and conducting the trial for the first and second respondents; and

(b) Mr. T. Jayaraj or his legal firm was in conflict of interest position when he or his legal firm acted for both the first and second respondents in a capital punishment case. In representing Criminal Appeal No: K-05(SH)-135-02/2018 4 multiple parties this could affect his ability to act in the best interest of the parties concerned. [7] The learned trial judge found merits in the issues raised by Mr. Farhan. In his written judgment, the learned trial judge held: “[11] Oleh itu saya mendapati bahawa kehadiran kedua-dua peguam daripada Tetuan T Jayaraj & Co dan seterusnya mengendalikan pembelaan terhadap Tertuduh Pertama dan Tertuduh Kedua tanpa kehadiran En. Jayaraj sebagai PLM adalah jelas berlakunya ketidakadilan dan memprejudiskan tertuduh pertama dan tertuduh kedua kerana kedua-dua peguambela di firma Tetuan T Jayaraj & Co yang hadir dan mengendalikan pembelaan tidak memenuhi syarat kelayakan sebagai PLM. Mereka juga bukanlah dilantik untuk mengendalikan kes ini sebagai PLM malah mereka juga bukan didaftarkan di dalam daftar peguam-peguam yang boleh dilantik sebagai PLM dengan Majlis Peguam/Jawatankuasa Peguam Negeri. Kesimpulan [12] Berdasarkan penelitian saya akan isu yang dibangkitkan oleh peguambela En. Muhammad Farhan Bin Ahmad Fadzil daripada Tetuan Naran Singh & Co. di atas, saya mendapati bahawa ia berasas. Ini adalah kes yang melibatkan hukuman mati. Demi keadilan, saya dengan ini melepaskan tanpa membebaskan ketiga-tiga tertuduh daripada pertuduhan yang mereka hadapi.” [8] Learned Deputy Public Prosecutor’s (‘learned DPP’) main complaint was against the learned trial judge ruling that the respondents be discharged not amounting to an acquittal (DNAA) of the charge preferred against them. Learned DPP submitted that the ruling was illegal as no Criminal Appeal No: K-05(SH)-135-02/2018 5 order of DNAA can be entered before conclusion of the trial. The power of the court to DNAA the respondents can only be granted at the request of the Public Prosecutor as envisaged under section 254 of the Criminal Procedure Code (‘CPC’). [9] The second ground raised by learned DPP was on the reliance by the learned trial judge on the Practice Direction No. 5 of 2013 was misplaced. The Practice Direction was a mere guideline without any force of law. The learned DPP relied on the decision of this Court in PR lwn Rosman bin Saprey dan satu lagi rayuan [2018] 4 MLJ 139. [10] Learned DPP further argued that there was no merit in Mr. Farhan complaint that the second respondent would be prejudiced when she be cross-examined by Mr. T. Jayaraj, the former solicitor, on behalf of the first respondent on the ground that the former solicitor had all the privileged information from the second respondent. Learned DPP argued that there was no conflict of interest occurred in this situation as the new counsel appointed by second respondent can raise any objection to whatever prejudicial question posed by the former counsel. [11] Mr. P.G. Cyril, learned counsel for the first respondent, raised an issue that the appeal by the learned Public Prosecutor was not competent on the ground that the DNAA’s ruling by the learned trial judge was not a decision as it does not finally dispose off the rights of the parties. Therefore, he argued the ruling is not appealable. Learned counsel relied on Syarikat Tingan Lumber Sdn Bhd v. Takang Timber Sdn Bhd [2003] 2 CLJ 177; Dato’ Seri Anwar Ibrahim v. PP [2010] 9 CLJ 625; Mohamad Criminal Appeal No: K-05(SH)-135-02/2018 6 Ridzuan Zamhor lwn. PP [2018] 4 CLJ 315; PP v. Mohamed Shahabuddin Mohamed Ali & Ors [2018] 8 CLJ 535. [12] Mr. Matthews, counsel for the second respondent defended the learned trial judge’s ruling that there was a mistrial and ordered the case to be retried before a different judge simply on the ground that there was a conflict of interest and miscarriage of justice when Mr. T. Jayaraj was assigned counsel for the first and the second respondents. Learned counsel relied on Tang Kam Yew & Anor v. PP [2013] 4 MLJ 888; Shamim Reza bin Abdul Samad v. PP [2009] 2 MLJ 506. [13] Mr. M. Athimulan, counsel for the third respondent relied on Shamim Reza’s argued that due to failure by Mr. T. Jeyaraj, an assigned counsel, to personally conduct the hearing was in breach of the Legal Profession Act 1967 which amount to a contempt of the Court. Coupled with an issue of prejudice and conflict of interest, quoting section 60(1) of the CJA, learned counsel submitted that the order of retrial by the High Court should be upheld by this Court. Learned counsel agreed that a mistrial happened in this case. However, learned counsel conceded that there was no legal provision for an order of DNAA at this stage. [14] Mr. M. Athimulan informed us that all the three respondents were rearrested immediately after the DNAA ruling and had since been recharged and incarcerated. On that ground alone, learned counsel argued, the appeal should be dismissed. [15] We had an opportunity perusing the appeal record and observed that there were merit in the complaint by the first and second respondent that Criminal Appeal No: K-05(SH)-135-02/2018 7 Mr. T. Jeyaraj did not conduct the cross-examination of the two material witnesses i.e. PW1, the agent provocateur, and PW2, the complainant. Instead, it was left entirely to the legal assistant from Messrs Jayaraj & Co whose competency was questionable and does not fulfill the criteria of an assigned counsel under the Practice Direction No. 5 of 2013. Mr. T. Jeyaraj himself was not present during that crucial time to guide the legal assistant. [16] The issue of incompetency of a lawyer had been discussed at great length by Suriyadi JCA in Shamim Reza’s case which we would reproduce in extensso below: “[34] 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. If there were to be any basis in that complaint, especially in a capital punishment case before us, we could not remain unperturbed but must react to it. If it were well-founded, though no mean task to establish such a serious allegation, the aggrieved party must benefit from the outcome in the event we conclude that the assigned counsel was indeed incompetent. This is so as, if a trial has been compromised by that incompetence, which went to the root of a conviction, a fair trial could not be said to have taken place. Permit us to discuss cases pertaining to this issue. In Chong Ching Yuen v HKSAR [2004] 7 HKCFAR 126, the Court of Final Appeal of the HKSAR, which went to great length to discuss the issue of incompetence of defence counsel, had occasion to remark: … the incompetence of defence counsel had been such as to compromise the fairness of the appellant’s trial. Accordingly I, too would allow this appeal to quash the conviction appealed against and set aside the sentence passed pursuant thereto … the crucial question is whether the appellant had a fair trial. Criminal Appeal No: K-05(SH)-135-02/2018 8 Certainly defence incompetence can cause or contribute to the creation of a state of affairs in which a conviction has to be regarded as unsafe or unsatisfactory. An appellate court cannot shut its eyes to the unsafe or unsatisfactory state of a person’s conviction just because that state was caused or contributed to by his counsel’s incompetence. Nor can an appellate court shut its eyes to an error of law against a person just because that error was caused or contributed to by his counsel’s incompetence. In determining whether defence incompetence has rendered a conviction unsafe or unsatisfactory our appellate courts should, in my view, focus firmly on the standard of trial that our system insists upon. As to this standard I have consulted three things. Of these, the first is the relevant parcel of constitutional rights found in the Basic Law and in the Bill of Rights as entrenched by Art 39 of the Basic Law. The second is the traditional standard of the common law. And the third is what I understand that the public expects. Having consulted these three things, I have no doubt that the sort of trial that our system insists upon is a fair trial. This being an imperfect world, one cannot expect perfect trials. But to be effective, a trial must be fair. If defence incompetence has, all things considered, resulted in the trial being something less than a fair trial, such incompetence constitutes a ground for quashing a conviction. There is direct correlation between the fairness of a trial and the viability of a conviction. In my view, these cases support, or at least can be reconciled with, a ‘fair trial’ criterion for determining whether defence incompetence constitutes a ground for quashing the conviction. This criterion will, I think, serve to determine most if not all cases of this kind. No appellate court would lightly declare a trial unfair. But where it concludes that a trial was unfair, that leaves little (if any) room for saying in effect that such unfairness did not really matter. Criminal Appeal No: K-05(SH)-135-02/2018 9 [35] Even though some of the following cases were discussed in Choong Ching Yuen, but as some of the crisp comments uttered are highly pertinent for the current appeal, we deem it fit to reproduce them. [36] In Boodram v The State of Trinidad and Tobago [2001] UK PC 20; [2002] 1 Cr App R 103, the court opined: Where counsel’s misconduct had been extreme and the defendant had been convicted, the impact of that misconduct on the result of the trial was no longer relevant. The defendant had not had the benefit of due process and the conclusion must be that there was a miscarriage of justice because there had not been a fair trial of the appearance of one. The breaches were of such a fundamental nature that the conclusion must be that the defendant was deprived of due process. Even without embarking on the impact of the breaches, the conclusion must be that the defendant did not have a fair trial. For that reason also the conviction had to be quashed. [37] In Mak Kam Chuen v HKSAR [2001] FAMC 35 of the court stated: … the question was whether the conduct complained of has resulted in the accused not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice. [38] In Sankar v The State of Trinidad and Tobago [1995] 1 WLR 194 the Privy Council advised: In an extreme situation where the defendant is deprived of the necessities of a fair trial then even though it is his own advocate Criminal Appeal No: K-05(SH)-135-02/2018 10 who is responsible for what has happened, an appellate court may have to quash the conviction and will do so if it appears there has been a miscarriage of justice. [39] In Reg v McLoughlin [1985] 1 NZLR 106, the Court of Appeal held: It is basic in our law that an accused person receives a full and fair trial. That principle requires that the accused be afforded every proper opportunity to put his defence to the jury… The present appellant has been deprived of that opportunity and justice has therefore been denied to him. [40] Even though this issue of a lawyer’s incompetence is not without precedent, the level of incompetence demanded by courts must be high in that it has to be flagrant. Anything short of a high degree will not persuade a court to set aside a conviction (R v Birks (1990) 48 A Crim R 385; R v Mo Lee Keun [1993] 1 HKCLR 78; R v Clinton [1993] 1 WLR 1181).” [17] Now, Article 5(1) of the Federal Constitution guarantees a right that no person shall be deprived of his life or personal liberty, save in accordance with law. Whereas the right to counsel is enshrined in Article 5(3) which provides that ‘where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.’ This right must include the right to a fair trial so that the conviction is safe and without any miscarriage of justice. The accused has a constitutionally guaranteed right to receive a fair trial, which includes his right to be represented and defended by a competent counsel. However, in the instant case the first and second respondent did not have a fair trial and Article 5 was violated due to the incompetency of counsel and on the ground of conflict of interest Criminal Appeal No: K-05(SH)-135-02/2018 11 arising from the solicitor’s past receipt of confidential information (see: Lee Kwan Woh v. PP [2009] 5 MLJ 301; Black v. Taylor [1993] 3 NZLR 403). [18] The Federal Court in Shamim Reza bin Abdul Samad v. PP [2011] 1 MLJ 471 had decided that the right to be represented by competent counsel forms part of the right to a fair trial. The appellate court may have to quash the conviction and will do so if it appears there has been a miscarriage of justice. Gopal Sri Ram, FCJ had put the test as follows: “[6] That, then, is the state of the authorities. In our considered judgment, the incompetence of counsel in the conduct of a defence in a criminal trial is a ground on which a conviction may be quashed provided that (i) such incompetence must be flagrant in the circumstances of the given case; and (ii) it must have deprived the accused of a fair trial thereby occasioning a miscarriage of justice. Nothing short will suffice. And in considering the question, an appellate court must have regard to the conduct of counsel as a whole and not merely to his or her failure in one or two departments. Further, in the ordinary way, a court whether at first instance or at the appellate state will of course have regard to its paramount function and duty to ensure that justice is done so that the incompetence of counsel will not factor into the equation. As the Federal Court said in Wong Lai Fatt v Public Prosecutor [1973] 2 MLJ 31: The paramount function and duty of the courts is to see that justice is done in all cases. As stated by Lord Denning MR in Doyle v Olby (Ironmongers) Ltd and others [1969] 2 QB 158 at p 166: We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side.” Criminal Appeal No: K-05(SH)-135-02/2018 12 [19] In Ogbodo Sunday Tochukwau v. PP & Other Appeals [2016] 9 CLJ 686, this Court emphasized that: “The dispensation of justice involved both procedural and substantive law. Justice cannot be dispense when its procedures are ignored. The right to be defended by counsel is both an issue of procedure and substantive law. The said right is embedded in our criminal justice system since time immemorial. Section 255 of the Criminal Procedure Code (CPC) expressly provides that every person accused before any criminal court may as of right be defended by an advocate, subject to any express provision of the law to the contrary.” [20] The question before us now is whether the learned trial judge was right during the trial stage to order the matter be DNAA and that it be retried before another judge on the ground of mistrial. Much as we agree with the learned DPP and conceded by Mr. M. Athimulan that there is no legal provision for the learned trial judge to order for DNAA at this stage, nevertheless the facts of the present case justify the learned trial judge’s order for a retrial due to mistrial. [21] We agreed with the learned trial judge that the following facts of the present case namely:

(a) Same counsel assigned to the first and second respondents gave rise to a situation of a conflict of interest in the preparing for the defence of both respondents especially when they were charged jointly in one trial;

(b) Eventhough Mr. T. Jayaraj was the assigned counsel for the first and second respondents, however most of the time the trial was Criminal Appeal No: K-05(SH)-135-02/2018 13 conducted by the legal assistant who was inexperienced. This contravened the guidelines stipulated in the Practice Direction No: 5 of 2013; and

(c) Mr. T. Jayaraj, the former counsel for the second respondent and now acting only for the first respondent is in possession of privileged information that could be used against the second respondent to the advantage of the first respondent and to the disadvantage and prejudice of the second respondent. [22] In our considered view, we are satisfied that there was a mistrial in this case. The trial was not conducted in accordance with proper legal procedures or in a manner conducive to fairness and justice. The conduct of Mr. T. Jayaraj has, to our mind, prejudiced the interests of his clients, the first and second respondents. [23] In the special circumstances of this case, we are of the view that an order of venire de novo ordered by the learned trial judge would be fair and proper. The appeal is therefore dismissed. The order of the High Court is affirmed. Dated: 9 July 2019 signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Criminal Appeal No: K-05(SH)-135-02/2018 14 Counsel For the Appellant: Mangai Deputy Public Prosecutor Attorney General’s Chambers Putrajaya For the 1st Respondent: P.G. Cyril Aqeeb Lizalman Nordin bin Zamery (with him) Messrs Aqeeb & Co For the 2nd Respondent Matthews Messrs Naran Singh & Co. For the 3rd Respondent M. Athimulan Messrs Athimulan & Co.