Updated: Oct 29, 2021
The articles reported on various media platforms caught the eye of many when it was reported that "A three-member bench chaired by Chief Justice Tengku Maimun Tuan Mat said Hussein’s previous lawyer was “flagrantly incompetent” 
Whilst this is a criminal case arising from a charge for trafficking of drugs, this article aims to discuss the basis upon the conviction of the High Court of Malaya being overturned by the Court of Appeal, which decision was varied by the Federal Court as the order of the Court of Appeal for a retrial was overturned. In short, the Accused is now a free mam (after having spent 8 years in custody), without the prospect of a retrial hanging over his head as the Court of Appeal and Federal Court found that the Accused’s lawyer was “flagrantly incompetent” in the conduct of the trial.
Summary of the Case
In summary, the High Court of Malaya at Tawau, having considered the evidence, was satisfied that the Accused had failed to cast any reasonable doubt in the prosecution’s case. The prosecution successfully proved its case beyond reasonable doubt and the Accused was convicted and sentenced to death being the only available sentence under section 39B(2)
of the Dangerous Drug Act .
At the Court of Appeal, the Accused applied to adduce further evidence to show the incompetency of his own counsel in handling the case at the High Court, which was allowed. Interestingly, at the Court of Appeal, instead of appealing against the decision of the High Court on the basis of the findings and the Grounds of Judgment of the High Court judge, the appeal was focused on the issue of whether the conviction and sentence by the High Court trial judge was safe considering the incompetency of Accused’s previous counsel handling the case at the trial court. The Federal Court in the case of Shamim Reza bin Abdul Samad v Public Prosecutor
 held that 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 such incompetence must be flagrant in the circumstances of the given case; and it must have deprived the accused of a fair trial thereby occasioning a miscarriage of justice.
Following this, the Court of Appeal examined the manner in which Counsel for the Accused had conducted the trial and the failures that had arisen based on the evidence before the High Court, the cross-examination of Counsel and also the submissions made in the Court by Counsel for the Accused. The Court of Appeal then quashed the conviction, but ordered for the case to be remitted to the High Court for a retrial.
As the Grounds of the Decision of the Federal Court has, at the time of writing, not been published, based on the available reports, the Federal Court has upheld the decision of the Court of Appeal in quashing the conviction against the Accused, but has also determined that the case ought not to be remitted back to the High Court for a retrial.
It was subsequently reported that the lawyer who represented the Accused was unable to put up a credible defence as he was suffering from a serious illness and that the lawyer had not informed his client of his health status. The lawyer has reportedly also since passed away . Assuming this is correct, then the lawyer in question ought to have recused himself from acting as the Accused’s counsel, as this would fall squarely in the circumstances upon which a lawyer may refuse to accept a brief (as discussed below).
Incompetence of a Lawyer
The reason behind the writing of this article is to highlight that advocates and solicitors are held to high standards, be it in criminal or in civil practice. For criminal matters, flagrant incompetence of a lawyer can result in a wrongful conviction, in certain instances, leading to a death sentence.
However, it does not mean that lawyers practicing in civil and commercial disputes ought to practice at a standard that is any lower. The Legal Profession Act 1976 (“the LPA”) provides severe consequences where any lawyer, amongst others, acts dishonestly, or misuses client’s money or property.
Further, advocates and solicitors of the High Court of Malaya are governed by the Legal Profession (Practice and Etiquette Rules) 1978 (“the Rules”), which provides, amongst others, the following:
Every advocate and solicitor shall at all times uphold the dignity and high standing of his profession;
An advocate and solicitor shall fearlessly uphold the interest of his client, the interest of justice and dignity of the profession without regard to any unpleasant consequences either to himself or to any other person;
No advocate and solicitor shall accept a brief in a case where he knows or has reason to believe that his own professional conduct is likely to be impugned;
An advocate and solicitor shall give advice on or accept any brief in the Courts in which he professes to practise at the proper professional fee dependent on the length and difficulty of the case, but special circumstances may justify his refusal, at his discretion, to accept a particular brief;
The conduct of an advocate and solicitor before the Court and in relation to other advocates and solicitors shall be characterised by candour, courtesy and fairness;
An advocate and solicitor shall refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by the client; and
An advocate and solicitor shall preserve his client's confidence and this duty outlasts his employment.
The Rules were enacted for the purpose of regulating the professional practice, etiquette, conduct and discipline of advocates and solicitors. The LPA provides that any advocate and solicitor who fails to comply with the Rules may be subject to disciplinary proceedings.
Lawyers can be suspended from practice or struck off the Roll if found to be guilty of “misconduct” which amounts to “grave impropriety”. Misconduct is defined to include a myriad of circumstances, for example, breach of any of the said Rules, breach of duty to a Court or dishonest or fraudulent conduct in the discharge of his duties (amongst others).
“It is understood that the Legal Profession (Practice and Etiquette) Rules 1978 was formulated to regulate the conduct of the legal profession, and to ensure that good legal ethics are abound in this profession, and not unwittingly to kill off this honourable profession."
This article is written as the author was recently approached with a new brief to take over conduct of an appeal that was to be lodged in the High Court. From a brief telephone conversation with the potential client, it became apparent within a matter of minutes, that the Notice of Appeal was being filed by the previous solicitors 2 weeks passed the prescribed deadline. An application for an extension of time to regularise the filing and the service of the Notice of Appeal had to be filed on an immediate basis, to which there was strenuous opposition. Whilst the Courts are minded to consider the overriding interest of justice and not only to the technical non-compliance of procedural rules, there is a line of cases where the Courts have taken a strict approach that the mistakes or negligence of a lawyer is not deemed to be good grounds to allow an extension of time .
The above is merely an example of the dire consequences attributed to mistakes by lawyers. Mistakes that cause grave impropriety may result in disciplinary proceedings and necessary action being taken against the lawyers, but this is usually seen in cases where there has been misappropriation of monies or acts involving dishonesty.
However, there are many instances where deadlines are missed or not complied with, or advice wrongly given, that may very well be to the detriment of the client but may not necessarily amount to misconduct under the LPA. Lawyers ought to constantly be aware of these potential issues that may arise and should take every precaution to be diligent and vigilant against allowing these mistakes to happen or in allowing personal circumstances or shortcomings to negatively impact the client’s position. Perhaps it would be best for lawyers to have the tagline “Constant vigilance!"  in mind when attending or conducting any brief.
Aarthi & Associates is a legal firm dealing with varied civil and corporate disputes. The firm's philosophy is "Providing Solutions", demonstrating a commitment to providing fast, effective and practical solutions to disputes.
 Public Prosecutor v Yahya Hussein Mohsen Abulrab  MLJU 1797
  1 MLJ 471
 Tetuan Kumar Jaspal Quah & Aishah v Far Legion Sdn Bhd & Ors  3 MLJ 305
 Examples of this can be seen in the cases of Tractor (M) Sdn Bhd v Southern Estate Sdn Bhd & Anor  1 CLJ (Rep) 398, FC; Tan ChaiHeng v Yeo Seng Choon  1 MLJ 271; and Gan Hay Chong v Siow Kian Yuh  2 MLJ 129, FC, which are still being applied in some recent High Court decisions.
 J.K. Rowling, Harry Potter and the Goblet of Fire