AUGUST 23 — I wish to address this Honourable Court on my position in this appeal. I am the appellant, yet the same feels illusory.
Over the past week, I have watched from the dock as my chances of success at this appeal slowly erode away. Not because of lack of merit but because I am not represented. While I note this Honourable Court’s decision on barring the discharge of my lawyers the fact of the matter is I am unrepresented.
I believe that there has never been a single occasion in Malaysian legal history where a counsel in a criminal trial or appeal has been prevented from discharging himself from representing his client in similar circumstances or any reasonable circumstances. Even the cases cited by Dato Sitham on Friday do not demonstrate this! In fact, the cases he presented to the court show in these cases there were continuing trend of multiple adjournments in the proceedings applied for by the accused/appellant before such drastic actions were taken by the court. In our case, this is the first time I have changed solicitors/counsel for a good reason which I shall elaborate in a while. This is also the first time an adjournment of a mere 4 months is requested for, unlike other cases where adjournments of about 70 times were allowed by our courts. At the end of this I wish to say something about what I have discovered from my casual understanding of the law in relation to the engagement of new counsel and circumstances posed that make it necessary for a request of an adjournment.
I take responsibility of decisions pertaining to my representation. But I genuinely thought they were sound decisions at the time based on my solicitors and external counsel advice. Now it seems to be adversely interpreted against me by this Honourable Court if an appellant similarly placed in my position cannot rely on his lawyers’ advice and being punished instead, fair trial and the rule of law seems to me illusory.
Yet, and at no point have I been afforded the opportunity to explain myself nor have I been asked about the circumstances that led us here. It is said that the accused is the most important person in the criminal court, yet I somehow feel mistreated and I feel fair trial has not been accorded to me.
Yang Arif, I plead that no offence is taken for what I have said, but it is simply how I feel. As an accused and appellant at the final stage of a case, it is the worst feeling to have, to realise that the might of the judicial machinery is pinned against me in the most unfair manner.
Yang Arif, Before I continue, a few of the things I am about to say had been previously disclosed to the media earlier, not because I want to take this appeal out of court but rather to have my statement placed before some public record while waiting for a chance to address this Honourable Court lest my statement here is treated as an afterthought.
With your permission, Yang Arif.
My previous lawyers at Shafee & Co., did well over the past four years representing me in the High Court and the Court of Appeal, leaving no stones unturned, which is why they remain my lawyers in the other trials I am facing.
But notwithstanding their valiant effort, I lost in both my trial and the appeal to the Court of Appeal, not because my defence lacks merit. My previous lawyers and I seriously entertained the notion that even my defence would have not been called at the trial on all charges and therefore the reasons for the voluminous submissions by my counsel even at that stage.
It is with this backdrop I felt that a fresh perspective of the case, and to bring in new ideas was warranted and necessary for my final appeal before this court as all and every valiant effort seems not to work. This after all involves my life, nothing less.
My initial plan was the engagement of Jonathan Laidlaw QC to come onboard with Shafee & Co. and to work together with Tan Sri Shafee and Harvey. The QC came with the highest of recommendations and I was confident that he would be a positive contribution to the team. After all, Chambers and Partners, described him as a the top most silk in the UK and in most part of the commonwealth, in the field of criminal law particularly relating to fraud, corruption, abuse of powers and other corporate and white collared crime, for the last 4 years consecutively.
It is important to bear in mind here, the QC was prepared for purposes of the hearing of this appeal starting on the last 15th August 2022. Fees for his services were paid. This should deliver the message to this court that I was serious with the appeal to go on the 15th.
The discovery of the evidence pertaining to Justice Nazlan further necessitated a new counsel to come onboard to independently look at the allegations and to submit before this Honourable Court in the most unbiased of circumstances.
Unfortunately, the High Court rejected the QC’s bid to come onboard as my lawyer on the 21st July 2022. I was discouraged as this literally stopped the QC’s preparation as the weeks of the appeal that he had reserved for the appeal would become wasted and he had to resort to adjusting his busy calendar.
With the High Court’s rejection and this appeal fixed around the corner I could not run the risk of the QC’s rejection being maintained at the appeal in the Federal Court leaving me with no additional counsel which by then I took the view was imperative to independently argue the issue regarding Justice Nazlan.
Datuk Zaid Ibrahim who had approached me some time back represented that he was able to bring in legal expertise from India through his Singaporean partner, a certian Mr Niru Pillai.
I had no knowledge of Datuk Zaid Ibrahim or his Singaporean partner of their expertise or otherwise in areas of criminal law, but I was then introduced by them to two senior counsel from India, who initially impressed me with their ideas. Ultimately, they suggested they will do the back end work while Datuk Zaid’s firm would facilitate the court process.
Datuk Zaid and team came with a condition that their engagement must include his firm being placed as solicitors on record and a new local counsel to come onboard. I never knew that neither Zaid Ibrahim nor Niru Pillai has ever practiced criminal law or had sufficient knowledge on those subjects.
I was advised by Datuk Zaid and Mr Niru Pillai that this was the only way they would be afforded time to prepare for the appeal as by practice and precedent the court will (and this was represented to me in absolute terms) grant time for a new team to prepare. Acting on their legal advice, I agreed to this course of action.
I was not made known of the various legal propositions cited by this Honourable Court in the judgement recently pronounced the other day pertaining to the undue difficulties of change of counsel and the adjournment that would become necessary to enable the new counsel and solicitors to familiarise with my case.
I was also convinced that this was an appropriate decision after being told that other high-profile appeals in the past were granted multiple adjournments in the spirit of due process to achieve real justice.
In fact, comparing my case to that of the last high profile case of Anwar Ibrahim, it can be said that my appeal has taken a fast track to reach here. Anwar took seven years with over 70 adjournments to get to this stage. The SRC case has taken 4 years, two years of which were affected by the pandemic and no less than seven other proceedings, criminal and civil against me. As I have said, I have also never sought for an adjournment in this appeal apart from the ones following my change of solicitors and counsel.
I say in no uncertain terms — My intention was not to simply delay the court process but rather because of QC Jonathan Laidlaw’s application not looking good based on the unreasonable and strong objections raised by the prosecution and the Bar Council, and ultimately the application being rejected less than a month before the scheduled dates at the gearing of the appeal. The objections taken by the prosecution and the Bar were so ridiculous that they argued that the QC must have Bahasa Malaysia qualification, a point settled by the Federal Court itself in Geoffrey Robertson QC, case. This point is important to show how these two bodies were all out to deprive me of a competent counsel before even I reach the Federal Court on the 15th of August. Any new team bringing in fresh ideas will need time, to read the voluminous Record of Appeal, written submissions, applications etc.
I am not ashamed to say, I was desperate, as would any litigant placed in my situation and predicament. I thought what I decided would increase my chances of improving the quality of submissions at the appeal.
Yang Arif, my decision has now left me with no counsel. While Tn Haji Hisyam came in with the most nobel of intentions, he cannot represent me effectively as he never had adequate time to prepare or read, and I consider him and the team of solicitors discharged as of August 18th, 2022 as it was made clear by Tn Haji on behalf of the team that they were not prepared to argue the appeals, in their state of total unpreparedness. Seriously, Yang Arif, may I ask this Court, am I to be blamed and punished for relying on my own solicitors and counsel advice.
Since, your decision last week, I have called up various counsel to find alternative representation, but considering the decision and grounds of this Honourable Court last Tuesday (16th August 2022), nobody is able or willing to take up my appeal, unless adequate time is given to that, as was being requested by Tn. Hj. Hisyam.
Even my previous counsel and solicitors are not able or willing to re-take the brief unless they are given adequate time of at least 2 months to re-mobilize their work considering the volume of preparation and other commitments to the courts. They can do this preparation in 2 months as they were involved at the High Court and the Court of Appeal. Tn Haji Hisyam on the other hand, together with his solicitors, being totally new to the case would require at least 4 months to get themselves ready and comfortable to argue the appeals.
This I must repeat leaves me with no counsel and I don’t know what to do. If given time of at least 2 months, I am confident I can assemble a team to adequately represent me – perhaps with a combination of my previous counsel and Hj. Hisyam in a consolidated team. In that proposed combination perhaps Tn. Hj. Hisyam can be brought up to speed by Shafee & Co. to be able to understand the case within 2 months..
Yang Amat Arif, on Monday Tn Haji Hisyam said a hearing is like a contest. But right now it seems like I’m put out of the contest, a contest that affects my liberty. I feel this is not cricket at all as there is total unfairness executed on me.
In the normal course of events my counsel at this stage will be submitting copiously in my defence. But that is not the case today. I can’t fault Tuan Haji for this and for him to just submit on a few points as suggested, would as I understand be a breach of another rule of practice where a defense counsel must present ALL legal defences available to him, surely not one or two points out of the 90 over grounds. My previous counsel Tan Sri Shafee and Harvey Singh had impressed upon me when preparing this appeal previously that there are at least 40 distinct grounds within the 90 grounds in the Petition of Appeal where my appeal on any single matter out of the 40 can be successful amounting to my acquittal in the appeal. How can any responsible counsel resort to taking up only 2 or 3 points out of the 90 grounds and do justice to me. This Honourable Court seems to be overly concern about the time allotted for this appeal and that any adjournment would posed inconvenience to this Court and perhaps the Prosecution. But, Yang Arif surely, in the light of what I have said and what would be said later on, must justice be sacrificed at the alter of convenience?
Therefore, I plead that time be given Yang Amat Arif. At this stage I am asking for two months for my counsel to be prepared and to conduct this appeal. I am already disadvantaged but at least let me have my day in court with proper representation with the fullest of the argument of my defence without limitation.
The upshot of what I am asking is a mere 2 months postponement adjournment of the hearing of the appeal as opposed to my life and liberty being shortened by 12 years of imprisonment, not to mention the astronomical sum of the fine.
If such time is not granted Yang Arif, this Court will then have the onerous task as demanded by law of having to go through the records of appeal (over 200 volumes not including the volumes of the previous submissions), unassisted by counsel to provide contrary to the Prosecution, which will definitely consume more time for this Court to provide adequate deliberation before a decision is made. In the context of that, isn’t the common sense approach of providing me adequate time more sensible and in accord with justice?
Yang Amat Arif, apart from my pleading for time, I wish to also record an objection on Yang Amat Arif continuing to preside on this appeal and invite Yang Amat Arif to consider whether it is appropriate for you to preside. I say this with the greatest of respect and I take no pleasure in raising this but over the past week, there have been numerous reports of sentiments against me placed in the public domain by Yang Amat Arif’s husband Dato Zamani Ibrahim. In a particular Facebook posting dated 11th May 2018 two days after the 14th General Election, Dato Zamani Ibrahim has expressed his views that clearly show his distaste and disgust towards me and that I am directly responsible for the 1MDB and SRC debacles. That includes my culpability that is the subject matter of this appeal.
The recent disclosure raises a serious question of Yang Amat Arif’s impartiality and judicious competency to hear this case. While I note the sentiments were raised by a spouse, it is not unreasonable to think that such sentiments are shared within the household, in a spousal relationship. The law also recognizes that there is a special relationship between husband and wife, it is a relationship of spousal privilege where the law presumes there will be an exchange of ideas and discourse in a marriage. Surely such strong statements by Dato Zamani Ibrahim would have been brought to your attention and shared. The test here is not actual bias but the appearance of bias.
While Yang Amat Arif may take the view that the court is free from political bias, let’s not forget that the actions of the previous Chief Justice Tun Richard Malanjum who proceeded with my pre-trial SRC appeals without any Records of Appeal being prepared is now a member of a political rival party — Pakatan Harapan and had campaigned for them immediately following his retirement. What a shocking state of affairs even for me to digest.
Yang Arif, it is situations like this that makes me uncomfortable. From the very beginning since my charges were levied against me, I have had doubts whether I am getting a fair chance in securing liberty in these trials.
It started after my charges were brought before a randomly appointed judge by your own computer system. However, after news of his brother being a member of Umno, and an exco of Pahang, he was suddenly and summarily transferred to the civil courts without any application for recusal by any parties and Justice Nazlan brought in. Now it is discovered that he took positive steps in issues relating to 1MDB when he was in Maybank which is part and parcel of the SRC saga.
Curiously this court has said that the evidence regarding Justice Nazlan have no relation to the charges against me. This court is correct. They don’t. What the evidence does show however is Justice Nazlan’s predisposition towards an adverse position against me in 1MDB that taints his judgement when deciding on the charges here. He is potentially almost in a definite position to be a witness in the 1MDB case and if he had known this matter earlier he would have been called as a court witness at our instance in the SRC trial.
With the help of some counsel I have discovered that there are many reported cases in the commonwealth from United Kingdom to Australia, Malaysia, India and Jamaica, South Africa, and from a non-commonwealth country in the United States, and my survey indicates that in my situation this Court should have given time to my counsel for adequate preparation in this very important appeal, which is noted by all the Court including the trial court as being the case that poses unusual issues and certainly great difficulties both in law and facts. In an old case, Chong Fah Hin versus Public Prosecutor, a 1949 decision by Justice Russell in Malaya, it was already decided that every accused person have a right to be defended by an advocate and should be given a sufficient time to instruct his counsel.
In the United States, a decision of its Supreme Court in Strickland versus Washington, a 1984 decision, it was held, “ a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defends the “ample opportunity to meet the case of the prosecution” to which they are entitled.”
Further, in the same court in 2006 in the called United States versus Gonzales-Lopez Justice Scalia a much revered and respected figure globally in the field of law and justice said this, “So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided — to wit, that the accused be defended by the counsel he believes to be best.”
In the same case, it was held that a counsel that provides ineffective representation is not a counsel within the meaning of the sixth amendment and his client is therefore presumed prejudiced as a fair trial could not have been achieved.
In the Australian case of McGill 1967 the Appellate Court in Victoria, over a matter of adjournment for fresh counsel to be instructed said this,
“The factors which led us to the conclusion that his Honour’s decision was unreasonable are these: in the first place, the adjournment sought was short; in the second place, there was no reason to think that this adjournment would appreciable embarrass or inconvenience the Crown; in the third place, lack of instructions to or lack of preparation by counsel might and probably would handicap the defence; in the fourth place, the refusal created a situation inconsistent with the requirement that justice should appear to be done.
It is essential to the administration of justice that the standards required to secure a fair trial according to law should be insisted upon. One of these standards is that an accused person must be given full opportunity to present his defence. “
In the landmark case by the highest court of Australia, Dietrich presided by 7 judges headed by Chief Justice Mason this was said, “the decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge’s discretion by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained.”
There are few hundred cases of similar sentiments worldwide. The counsel who volunteered this information for me, provided them to me and I am aghast to note that this principle is so established in order to provide justice to people like me, and yet the Prosecution provided cases on adjournment and change of counsel that bears no relevance to my current state of affairs. I’m disappointed with Your Ladyships and Your Lordships rulings that I am not entitled to an adjournment in order to provide effective defence through an effective counsel. Two of Your Ladyships decided in Yahya Hussein Mohsen AbdulRab versus Public Prosecutor that a flagantly incompetent counsel does not amount to the right to a counsel of an accused person to be adequately satisfied. Yang Arif, has directed my unprepared counsel to nevertheless submit, even on one or two points out of the 90 points, does not this tantamount to instructing an ineffective counsel to submit on matters affecting my liberty. And through no fault of my own! Is this the justice that the Highest Court of this land wants to deliver? Or am I just a pawn, as Geoffery Robertson QC said, “in a justice game”?
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
