"…while the appellant is entitled to his right to change his counsel, he is not entitled to make this choice at the expense of the court, the prosecution or the entire justice system. Further, the time taken on this case, especially the number of days fixed for hearing means many other criminal cases and accused persons have had to wait their turn for their appeals to be heard. Justice delayed in this case is also justice denied to other accused persons.” — Tengku Maimun.
PUTRAJAYA (Aug 16): The Federal Court on Tuesday (Aug 16) rejected former prime minister Datuk Seri Najib Razak's bid to postpone his final appeal against his conviction in the SRC International Sdn Bhd case by three to four months, saying Najib still chose to change counsel despite being "well aware" of his appeal dates.
The five-member bench led by Chief Justice Tun Tengku Maimun Tuan Mat dismissed the adjournment application made by Najib's new legal team headed by Hisyam Teh Poh Teik, who asked the court for his team to "be given adequate opportunity to do a good job" since they only recently took over the appeal and the voluminous documents contain "strong serious points to be canvassed".
"To put it bluntly, the defence seeks an adjournment of these appeals for the simple reason that they are not prepared," Tengku Maimun wrote in her broad grounds of judgement on Tuesday.
"The appellant (Najib), having been well aware of the dates fixed for the hearing, elected to discharge his former solicitors and appoint Messrs Zaid Ibrahim and Hisyam Teh as his solicitors and counsel respectively.
"This is his right to do so, but he cannot, after having made that decision, turn around and say that his new lawyers are not ready to proceed with the hearing of the appeal."
Tengku Maimun said the Aug 15 to 26 dates had been fixed since April, and that Najib's new lawyers were aware of the matter when they took over the case on July 26, replacing Messrs Shafee & Co.
"The new lawyers too, having accepted the brief, are not entitled to say they need more time to prepare, knowing full well that the dates have been fixed well in advance. Given the circumstances we have outlined, the request for the adjournment and the grounds in support thereof are neither cogent nor reasonable," she added.
She also said Rule 6(a) of the Legal Profession Act, although not binding in the court, must take precedence.
Section 6(a) of the Act states that "an advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day".
According to Tengku Maimun, when a counsel has accepted a case, he should be deemed as "reasonably certain of being able to appear and represent the client on the required day".
She also cited the Legal Profession (Practice and Etiquette) Rules 1978 that disfavour adjournments unless cogent reasons are provided.
Tengku Maimun added that while there are some cases where an adjournment should be given, this case is not one of them.
"We start by saying that we agree that in appropriate cases, where counsel is not ready to proceed for legitimate reasons, the court should be minded to adjourn a cause or matter. We do not think this is the case here," she said.
She further added that while these rules are not binding in the court, they are binding to members of the Malaysian Bar "who are obliged to comply with them".
"And, they are indicative of the fact that any disciplined lawyer such as the counsel for the appellant would not have accepted a brief with dates already fixed for hearing unless he was prepared," she said.
'Najib not entitled to change counsel at court's expense'
Tengku Maimun also said that "considerable public funds" would be wasted if an adjournment is granted.
While Najib has the right to change his counsel, Tengku Maimun said that Najib is not entitled to make the choice at the court's expense.
"As such, we state again that while the appellant is entitled to his right to change his counsel, he is not entitled to make this choice at the expense of the court, the prosecution or the entire justice system," she said.
The court also said that if this case is delayed any further, many other cases will have to wait their turn for their appeals to be heard.
"Further, the time taken on this case, especially the number of days fixed for hearing, means many other criminal cases and accused persons have had to wait their turn for their appeals to be heard. Justice delayed in this case is also justice denied to other accused persons," she said.
In her decision, Tengku Maimun ordered the hearing of the final SRC appeal to begin on Thursday (Aug 18) after Hisyam requested for an adjournment for a few months to prepare for the case that he took over on July 26.
The other judges on the bench were Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, and Federal Court judges Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, and Datuk Mohamad Zabidin Mohd Diah.
Najib’s wife Datin Seri Rosmah Mansor also attended the proceedings on Tuesday. She was spotted in court and left shortly after with her entourage.
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Download the Federal Court's broad grounds on the motions to adduce further evidence here.