This article first appeared in The Edge Malaysia Weekly on November 15, 2021 - November 21, 2021
This monthly report is compiled and briefly summarised by a group of lawyers on a voluntary basis for the benefit of readers of The Edge.
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CONSTITUTIONAL LAW
Federal Court (‘FC’) and Court of Appeal (‘CA’) make concurrent rulings on the right to a fair trial and the incompetent Counsel
Article 5(1) of the Federal Constitution guarantees the right to a fair trial, which is a fundamental tenet of the rule of law. It is only through the fair trial process that a person may be deprived of his life or personal liberty.
Issues
What is the required degree of incompetence of a Counsel representing an accused in a criminal case that jeopardises the right of the accused to a fair trial? Where the required threshold level of incompetence is established, should a retrial be ordered, or should the accused be acquitted and discharged? These two issues came before the FC in Yahya Hussein Mohsen Mohamed v Public Prosecutor (Judgment dated 5.9.2021).
Case summary and decision
Yahya Hussein Mohsen Mohamed (‘Appellant’), a Yemeni, was arrested at the Tawau airport. He was charged under the Dangerous Drug Act 1952 for trafficking Methamphetamine (‘Meth’), which was found in his bag. There was conflict in evidence as to the quantity involved. One witness for the prosecution said the weight of the Meth was four kilograms, while another prosecution witness said that the weight was 1,800.29 grams. The High Court (‘HC’) was satisfied that the weight was 1,800.29 grams — the weighing machine used by the latter witness was calibrated but not the machine used by the other prosecution witness. The Appellant testified that (a) he had no knowledge of the Meth in the bag because the bag was packed by a person by the name of ‘Mickey’; and (b) Mickey is the brother-in-law of his wife. The rejection of the evidence was premised on the grounds that (a) the character Mickey was never put to the prosecution’s witnesses; and (b) absence of evidence that he and Mickey enjoyed a special relationship to justify Mickey packing the bag for him when the most reasonable thing for the Appellant to do was to ask his wife to pack his bag. Accordingly, the HC held that the defence was illogical and that Mickey is merely a ‘made-up story’, or was an ‘afterthought’. He was convicted and sentenced to death. A few months after the HC’s decision, his trial counsel passed away. Prior to the hearing of his appeal in the CA, an earlier panel of the CA had allowed the Appellant to adduce fresh evidence. The additional evidence was given by the Appellant, his wife and an officer from the Yemeni Embassy in Malaysia (‘Yemeni Official’). In the additional or fresh evidence, the Appellant testified that (a) he had told his late trial counsel while he was in prison that he was under the impression that he was delivering some presents on Mickey’s behalf; (b) Mickey is the brother-in-law of his wife; (c) the character Mickey was disclosed at the earliest opportunity upon his arrest and in his cautioned statement he used a codename ‘Mr. Tee’ because he was told by Mickey not to mention the fact of Mickey so that Mickey could travel to Tawau to help him and this discrepancy was told to his late trial counsel; (d) his late trial counsel told him that he would ‘study’ the Appellant’s narrative and revert to him; (e) after that meeting with his late trial counsel at the prison, they never met again until the hearing in the HC, where he was told by his late trial counsel that he would only raise the issue of the discrepancy in the weight of the Meth. In summary, the evidence of his wife and the Yemeni Official were the same —
(a) Mickey was indeed the wife’s brother-in-law; (b) the Appellant had insisted that his wife be brought to the HC in Tawau to give evidence; (c) although she was present in the HC in Tawau to testify on the Appellant’s behalf, his late trial Counsel refused to call the Appellant’s wife as a witness and gave no reasons for the refusal; (d) his late Counsel did not present submission at the close of the prosecution case; and (e) he was absent during the decision of the close of the defence case.
Decision of the CA
In a unanimous decision of the CA (reported as Yahya Hussein Mohsen Abdulrab v Public Prosecutor in [2020] MLJU 1372) delivered by Abu Bakar Jais JCA (Yaacob Haji Md Sam and Hanipah Farikullah JJCA concurring), it was held that on the facts, the late Counsel had shown ‘flagrant incompetence’ on seven counts.
From left: Yaacob Haji Md Sam, Hanipah Farikullah and Abu Bakar Jais JJCA
[38] … the overarching principle in applying this law is that the duty of the court in achieving justice should always be in the forefront despite the contention a counsel may have been incompetent. This is taken to mean that at the end of the day, the courts should still bear in mind whether justice is served in view of the totality of the evidence adduced, notwithstanding the manner the trial had been handled by the accused’s counsel.
Justice Abu Bakar Jais
Flagrant incompetence included (a) challenging the prosecution’s witnesses only as to the weight of the Meth; (b) assumed an untrue and precarious position at trial because the Appellant’s defence was that the bag containing the Meth was given by Mickey to him and he was not aware of the Meth; (c) failure to cross-examine the prosecution’s witnesses on this defence; (d) the failure was a very serious matter as it deprived the Appellant of a fair trial and affected the Appellant’s version of his innocence; and (e) the ‘afterthought’ finding by the HC was due to the flagrant incompetency in not introducing and pursuing the Appellant’s defence of innocence.
Decision of the FC
The FC in a unanimous decision delivered by Tengku Maimun CJ (Mohd Zawawi Salleh and Nallini Pathmanathan FCJJ concurring), upheld the decision of the CA on the facts that there was flagrant incompetence in violation of the guarantee to fair trial under the Federal Constitution. However, the FC disagreed with the CA that there should be a retrial because the Appellant had been imprisoned for eight years, six of which was on death row. As such, it would result in substantial injustice to the Appellant to be in incarceration all over again. In acquitting and discharging the Appellant, the FC rejected the arguments of the Deputy Public Prosecutor that (a) it was not the fault of the prosecution to warrant a discharge and acquittal on what was a perceived technicality; and (b) nulling the conviction on account of flagrant incompetency would open up the floodgates in encouraging such arguments in the future.
(1) Rejection of prosecution’s ‘no fault’ argument
From left: Tengku Maimun CJ, Mohd Zawawi and Nallini Pathmanathan FCJJ
[55] We will first deal with the ‘fault’ point. The prosecution is but one aspect of the administration of justice albeit a significant one. The system is made up of many other actors including the judge, defence counsel, the police, interpreters and various other parties. The core of the criminal justice system is to dispense justice to the public for the wrongs committed by the ‘criminal’. In this regard, the primary duty of the prosecution, after determining that there is a sound case and preferring a charge, is to marshal and lead evidence pointing towards guilt.
[56] The entire system of law that we have curated in our democratic system of government therefore means that the prosecution does not have the ultimate say in the guilt or innocence of a person. That is the exclusive duty and role of the courts. In this regard, the prosecution must not approach all cases with the mindset that they must secure a conviction at all costs in the same way defence counsel must not entertain the idea that he must secure an acquittal at all costs.Their paramount duty, apart from their duties to their clients (defence) or the public/State (prosecution), is to conduct the trial in a candid, honest and fair manner so that the ultimate truth of the case is presented to the court.
[57] … if any of these numerous components of the machinery of the justice system fail to function correctly, the entire administration of justice will collapse. Trials would become merely a façade or an act to simply secure a conviction without regard to the due process of law which assumes that all persons are innocent unless proven otherwise … the strength of the prosecution’s case is irrelevant if the accused is not given a fair trial as required by Article 5(1) of the Federal Constitution. And the question of fault simply does not arise …
[59] … we also disagreed with learned DPP that the issue of flagrant incompetence of the trial counsel was a mere ‘technicality’. In our considered view, in the circumstances of the present appeal, the flagrant incompetence of the trial counsel affected the outcome of the trial by depriving the appellant a fairly open chance of acquittal. It is clear that some failures of the trial counsel … had resulted in a trial that did not meet the minimum standard of fairness as envisaged in Article 5(1) of the Federal Constitution and had caused a miscarriage of justice.
Chief Justice Tengku Maimun
(2) Rejection of the ‘floodgates’ argument
ARBITRATION LAW
Federal Court (‘FC’) clarifies the misconception between the concepts of ‘seat of arbitration’ (‘Juridical Seat’) under Arbitration Act 2005 (‘AA’) and the territorial jurisdiction of the High Court in Malaya and the High Court in Sabah and Sarawak under the Courts of Judicature Act 1964 (‘CJA’)
Article 121 of the Federal Constitution provides for two High Courts of co-ordinate jurisdiction and status — the High Court in Malaya (‘HCM’) and the High Court in Sabah and Sarawak (‘HCSS’) and the HCM and HCSS enjoy concurrent but non-competing territorial jurisdiction. It is a non-competing territorial jurisdiction because s 23 of the CJA provides that actions are to be filed at the place or location where the cause of action arose. If the cause of action arose in Sabah, then the HCSS has territorial jurisdiction (‘Territorial Jurisdiction’) in respect of the dispute and not the HCM. The choice of court is a matter of law and not a matter for agreement between the litigants. Under the AA, whether in respect of a domestic or international arbitration, parties to an arbitration agreement are free to choose the Juridical Seat of arbitration or the particular location or place within a nation as to where the arbitration shall take place. In the absence of agreement, the arbitral tribunal determines the Juridical Seat. The freedom to choose the Juridical Seat under the AA is a result of the legislature giving primacy to the principle of party autonomy and the chosen Juridical Seat determines the applicable procedural law of an arbitration (lex arbitri or the curial law). The powers conferred by the choice of the Juridical Seat is known as the ‘supervisory jurisdiction’ of the Court, providing the framework for the power of the Court to supervise and support the arbitration. The supervisory powers include granting interim reliefs in aid of arbitration, registration of arbitral awards and challenges to awards. In essence, the choice of the Juridical Seat is submission by the parties to the applicable curial law where arbitration takes place.
Issues
In a domestic arbitration, given that the HCM and the HCSS enjoy concurrent jurisdiction and the curial law is uniform throughout Malaysia, is the supervisory jurisdiction (whether to grant interim reliefs in aid of arbitration, to enforce and/or annul an award) exercisable by any domestic court, be it the HCM or the HCSS such that the concept of Juridical Seat is irrelevant, including the principle of party autonomy? If so, in respect of a domestic arbitration which was heard in Kuala Lumpur (‘KL’), can the winning party choose to register the award for purposes of enforcement in any HCM within Malaysia, whether at Penang or Kelantan or elsewhere? Similarly, can the losing party choose to file an application in any HC to set aside the award made, whether in Perak, Kota Kinabalu (‘KK’) or Miri? These issues confronted the FC in Masenang Sdn Bhd v Sabanilam Enterprise Sdn Bhd (Judgment dated 3.9.2021).
Case summary and decision
The Appellant (‘Masenang’) and the Respondent (‘Sabanilam’) entered into a contract under the standard PAM construction contract. The construction site was in Panampang, near KK. A dispute arose and it was heard at the PAM Arbitration Centre in KL pursuant to the PAM Arbitration Rules. An award was handed down in favour of Masenang. Masenang filed proceedings in KL (‘KL Suit’) to register the award. Sabanilam filed proceedings in KK (‘KK Suit’) to set aside the award. These two sets of proceedings gave rise to a multiplicity of proceedings and conflicting decisions. Masenang successfully struck out the KK Suit, premised on the reasoning that supervisory jurisdiction over the award resided in the HCM in KL. Masenang successfully registered the arbitral award as a judgment in the KL Suit. Subsequently, the appeal by Sabanilam to the Court of Appeal (‘CA’) against the striking out of the KK Suit was allowed. The CA held that the Juridical Seat of arbitration was irrelevant — Sabanilam had the right to set aside the award in the HC in KK as much as Masenang had the right to register the award in the HC in KL. The reasoning of the CA was that as the AA is applicable throughout Malaysia, the effective seat of arbitration is Malaysia. Thus, there was no need for identification of a particular “seat” within Malaysia as the same curial law is applicable throughout Malaysia, unlike in cases of international arbitration where another nation may assume the Juridical Seat and different curial law applies. At the hearing of the KK Suit that was restored by the CA, the HC in KK set aside certain paragraphs of the award and remitted the award to the arbitrator for re-determination. This resulted in two conflicting decisions of the HC in respect of a single arbitral award, one registering the award as a valid judgment, and the other remitting the award for redetermination on certain issues. The FC granted leave to Masenang to appeal against the decision of the CA. In a unanimous decision delivered by Nallini Pathmanathan FCJ (Vernon Ong and Rodzariah Bujang FCJJ concurring), the FC upon a detailed examination of the concept of the Juridical Seat in domestic and international arbitration, the concept of Territorial Jurisdiction under the CJA, the provisions of the AA and the CJA, reversed the CA’s decision.
The FC rejected the concept that Juridical Seat in domestic arbitration is irrelevant merely because the same curial law applies throughout Malaysia, or that it is only relevant in international arbitration where the curial law of one or two distinct nations may differ and the curial law of the place or location of the international arbitral proceedings will prevail. According to the FC, the flaw in the CA’s reasoning is that it ignores the principle that the ascertainment of the Juridical Seat also determines the supervisory court in which jurisdiction vests exclusively, or has exclusive jurisdiction over the regulation of the arbitration. In the context of the AA, which is modelled on the UNCITRAL Model Law, it is wrong to conflate the regulation of arbitral proceedings under the AA with the law relating to civil disputes, or amalgamate the law relating to Territorial Jurisdiction with the law governing arbitration proceedings under the AA, which gives primacy to party autonomy. The conflation had ‘spawned no less than four appeals and caused the present state of legal chaos, which is antithetical to the order essential to any rational sytem of administration of justice’ and had also resulted in inconsistent outcomes. The FC pointed out that s 2 of the AA defines ‘High Court’ to mean ‘the High Court in Malaya and the High Court in Sabah and Sarawak or either of them, as the case may require’ (original emphasis) and ‘seat of arbitration’ as ‘the place where the arbitration is based in accordance with section 22’, making no distinction between international and domestic arbitrations.
From left: Nallini Pathmanathan, Vernon Ong and Rhodzariah Bujang FCJJ
[43] …The Court of Appeal reasoned that the concept of the ‘juridical seat’ becomes irrelevant in a domestic context because the same curial law applies throughout Malaysia, unlike an international arbitration where the curial law of one of two separate and distinct nation states will prevail, depending on where the juridical seat is found to be. Therefore the exercise of ascertaining the “seat” is futile where there is no dispute about the applicable law.
[44] However, in so reasoning, the Court of Appeal failed to consider that the theory of the juridical seat is not confined solely to the purpose of ascertaining the relevant curial law. The identification of the seat has the consequential effect of ascertaining the court that enjoys exclusive jurisdiction to regulate and supervise the arbitration …
[62] It follows that any reference to the “High Court” may refer to the High Court in Malaya and the High Court in Sabah and Sarawak or one of them. The definition stipulates that the Act encompasses both the High Courts. This in turn means that the law as set out in the AA applies both in the High Court in Malaya as well as that of Sabah and Sarawak, making it uniform throughout the country. In this context it is indeed correct to state that the curial law applicable is the same throughout the nation.
[63] But the definition, by use of the words “either of them, as the case may require” envisages that the term ‘High Court’ may refer to one or the other of the two High Courts, depending on the circumstances of any particular arbitration. The express words utilised have been included in the definition for a purpose and cannot be simply deemed to be surplusage or irrelevant.
[64] Put another way, although both High Courts have jurisdiction to hear and deal with arbitration proceedings and awards, this is not equivalent to saying that both High Courts enjoy a concurrent jurisdiction in respect of any particular domestic arbitration. The words “or either of them as the case may require” clearly denote that for any particular domestic arbitration, the High Court enjoying supervisory jurisdiction will be the Court at the seat of the domestic arbitration …
[66] The reference to, and definition of the seat of arbitration is significant …
[67] It provides for the means of identifying or ascertaining the seat by reference to section 22 AA. Significantly, there is no distinction made between international and domestic arbitrations. There is no exclusion of domestic arbitrations in relation to the definition of the seat.
[68] In other words, the seat of an arbitration, both domestic and international, is to be determined by reference to section 22 AA. The only reasonable conclusion to be drawn is that the theory or concept of a “seat” is relevant and applicable even in a domestic arbitration. It is not confined to international arbitrations …
[71] … The doctrine of the “seat” of arbitration is expressly referred to and is not excluded. This has bearing on the relevance of the applicability of the doctrine in the context of a domestic arbitration …
[72] The fact that the ‘seat’ is in “Malaysia” cannot be logically assumed to mean that every location or place within Malaysia comprises the seat. The parties have to agree where in Malaysia the seat is to be located, failing which the arbitral tribunal will determine the same in accordance with section 22 AA. So it is not tenable to construe Malaysia as one location or place in the context of an arbitration, domestic or international. For example, even in an international arbitration where the dispute is between two nation states, if the seat is ascertained to be in Malaysia it will follow that the seat will be for example, Kuala Lumpur, Malaysia, or Kota Kinabalu, Malaysia. The applicable law, i.e. the curial law applicable, is Malaysian law, but the seat has to be designated as a particular place or location within Malaysia. And if that designated place is Kota Kinabalu, then it is the courts at the seat, i.e. Kota Kinabalu that enjoy supervisory jurisdiction …
[92] In summary, a plain reading of section 22 AA evidences the fact that where the arbitration is in Malaysia, the parties are free to agree to any “place” or “seat” within Malaysia, whether Kuala Lumpur, Kota Kinabalu, Penang etc. In the absence of such agreement between the parties, the arbitral tribunal is to determine such a seat, in accordance with section 22 AA. And where parties have selected such a seat or it has been so determined by the arbitral tribunal, such selection would amount to an exclusive jurisdiction clause as the parties have effectively agreed that the courts at the “seat” alone would have jurisdiction to regulate, supervise, or deal with challenges against the arbitral award made at the seat.
Justice Nallini Pathmanathan
LEGAL PROFESSION
Federal Court (‘FC’) clarifies when a person may be held to be ‘practicing law’ in breach of the Legal Profession Act 1976 (‘LPA’)
Under the LPA, if an advocate and solicitor is adjudged a bankrupt, his practicing certificate will be suspended forthwith until his status as an advocate and solicitor is reinstated with the consent of the Bar Council.
Issues
What is exactly meant by ‘practicing law’? In cases where the practicing certificate of an advocate and solicitor is suspended, he becomes, so to speak, a lay person. As a lay person, can he or she give legal advice informally and assist a litigant in the background? Does an isolated act of giving advice constitute practicing law or must it require a systematic, regular and continuous act? These issues confronted the FC in Darshan Singh Khaira v Zulkefli Hashim and Majlis Peguam Malaysia (Intervener) (Judgment dated 13.8.2021).
Case summary and decision
Darshan Singh (‘Appellant’) was struck off the Roll of Advocates and Solicitors of the High Court of Malaya (‘Roll’) by the Disciplinary Board of the Majlis Peguam Negara (‘DB’) for practicing law without a practicing certificate as he was an adjudged bankrupt. The basis of the DB’s order was that the DB found that the Appellant had assisted the complainant (‘Zukefli’) in a traffic case in the Magistrate Court and later in proceedings in the High Court (‘HC’) and the Court of Appeal (‘CA’) without a practicing certificate. Although Zulkefli had represented himself in the Court proceedings, Zukefli had engaged the Appellant to prepare legal documentation and had sought legal advice from him. Zulkefli’s appeal in the CA was struck off on a procedural ground in that leave to appeal had not been obtained. Zulkefli then made a complaint to the Majlis Peguam Malaysia and upon that complaint, the Appellant was struck off the Roll. His attempt to set aside the order of the DB was unsuccessful in the HC and the CA. The FC gave him leave to appeal on the single issue of law — whether the giving of advice to a client of a law firm amounts to practicing law. In the FC, the Appellant argued that as a lay person, there was nothing wrong to give legal advice to a client of a law firm and the fees were not paid to him but the law firm for work done by him. In a unanimous decision delivered by Harmindar Singh Dhaliwal FCJ (Rohana Yusuf PCA and Azhar Mohamed CJM concurring), the FC rejected the arguments that (a) practicing law requires a systematic, regular and continuous act and the mere giving legal advice cannot amount to practicing law; and (b) the mere giving of legal advice without reward cannot amount to practicing law.
From left: Rohana Yusuf PCA, Azahar Mohamed CJM and Harmindar Singh FCJ
[20] … we do not agree [with the Appellant’s submissions]. In our view, even a single or isolated act can amount to acting as an advocate and solicitor. It is not so much a single or isolated piece of advice but rather whether the impugned act or acts is what a lawyer usually does in carrying out his functions and duties as an advocate and solicitor …
[25] … in the present case, although being an “unauthorised person” as he was suspended from practice, the appellant not only actively advised the complainant on the procedures applicable in the Court of Appeal but also prepared the documents for the appellant to file in the Court of Appeal. The said advice and documents were directly relevant to the complainant’s rights and were tailored to meet the particular needs of the complainant …
[30] Put simply, the appellant was doing, as the evidence disclosed, what a lawyer does when a client comes for advice and it was intended for the complainant to act on the legal advice provided. In our view, there existed quite plainly a relationship of confidence and trust between the appellant and the complainant which is an essential of legal practice … It was not a case where some legal advice was given casually or informally and importantly, lacking the necessary setting and status of a solicitor dealing with a client.
Justice Harmindar Singh
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