SRC conviction review: Federal Court committed fundamental error after enforcing ‘forced representation’ of ineffective counsel, says Shafee

PUTRAJAYA, Feb 20 — The Federal Court committed a fundamental error when it enforced ‘forced representation’ of an ineffective counsel to remain on board as Datuk Seri Najib Razak’s representative, his lawyer argued today.

Telling the Federal Court during the former prime minister’s bid to have his SRC International conviction and sentence reviewed, Tan Sri Muhammad Shafee Abdullah said then counsel Hisyam Teh Poh Teik was not accorded reasonable opportunity to present his case in August 2022.

Najib had previously elected to have Muhammad Shafee discharged and appoint Zaid Ibrahim Sufian TH Liew & Partners (ZIST) and Hisyam as his solicitors and counsel respectively.

Muhammad Shafee said despite the defence’s insistence in August back then, the Federal Court’s five-judge panel led by Chief Justice Tun Tengku Maimun Tuan Mat unanimously dismissed the defence’s bid for a postponement to be granted.

“It strikes me as completely illogical. So the question was, is this a case of non-pursuit of the appeal?” the lawyer asked.

Muhammad Shafee said the circumstances at hand meant that Hisyam — who was unprepared by his own admission — was therefore merely ‘decorative’ since the latter was compelled to stay on and thus unable to discharge himself after having his request for adjournment dismissed by the Federal Court.

“That is not sanctioned, this calls for review, a fundamental error that goes against the very rubric of fair trial.

“It was a ‘forced representation; by an ineffective counsel, who was not prepared. It was a representation by ‘pretence’, supervised by the Federal Court. This right was an illusory right in this case,” he said further at today’s hearing at the Palace of Justice here.

In the present case, Muhammad Shafee said the liberty of his client was very much at stake as he had twelve years of imprisonment hanging over his head with an unprecedented colossal fine of RM210 million ordered against him.

Calling the Federal Court’s refusal to grant an adjournment to the hearing of the main appeals a serious miscarriage of justice, Muhammad Shafee later described the so-called ‘injustice’ as flagrantly taking place in front of one’s eyes.

“My client did not get a hearing at all, he was unrepresented,” he said.

A five-member panel presided over today’s hearing with Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli leading; Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Rhodzariah Bujang, Datuk Nordin Hassan and Court of Appeal judge Datuk Abu Bakar Jais on the bench.

Following his incarceration, Najib had since sought to challenge the Federal Court’s five-member bench’s August 2022 unanimous decision in affirming his conviction, sentence and fine meted out by the High Court for the misappropriation of RM42 million of SRC International Sdn Bhd fund.

On July 28, 2020, Justice Datuk Mohd Nazlan Mohd Ghazali found him guilty of seven charges: three criminal breach of trust charges, three money-laundering charges and one abuse of power charge at the High Court.

Mohd Nazlan, who is now a Court of Appeal judge, had sentenced Najib to 12 years in jail and fined him RM210 million in default five years imprisonment and his decision was upheld by the Court of Appeal on Dec 8, 2021.

The hearing resumes tomorrow.