PUTRAJAYA, March 31 — The sole dissenting judge in the Federal Court’s 4-1 decision to dismiss Datuk Seri Najib Razak’s bid to review its ruling last year upholding his conviction for misappropriating RM42 million from SRC International said Najib ought to be acquitted and discharged of all criminal charges since an injustice had taken place.
In his minority ruling, Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli said there appeared to be a miscarriage of justice in the main appeal process when Najib was left without legal representation after his then-lead counsel Datuk Hisyam Teh Poh Teik said he was not prepared to submit, and subsequently, sought to discharge himself.
Last year, Hisyam had informed the court he refused to submit on behalf of the defence since he was unprepared, with the court later rejecting Hisyam’s request to discharge himself.
“It was not possible for the earlier panel to conduct the main appeal in accordance with the rule of natural justice, due to the fact that counsel had discharged himself, leaving the applicant stranded.
“They should have adjourned the hearing of the main appeal because the rules of natural justice are paramount.
“The applicant was not heard at all. The applicant is at a great and substantial injustice. He was in a disadvantaged state, as he was not represented during the appeal.
In allowing Najib’s application, Abdul Rahman said he could only arrive at one conclusion in that the circumstances indeed warrant a review under Rule 137 of the Rules of the Federal Court of the reason an injustice has been caused against Najib.
“For all the reasons, I allow the application by the applicant. As for the consequential order to be made, the proper order in my view would be the order of acquittal and discharge of all the offences the applicant was charged with.
“It appears to me there’s a miscarriage of justice and the applicant was deprived of a fair hearing,” he said.
In his judgement, Abdul Rahman said the initial main appeal panel was wrong in preventing Najib's then-lead counsel Datuk Hisyam Teh Poh Teik from discharging himself from representing the former.
The learned judge cited the Registrar’s Circular No. 6 of 1960 — still in force and whose notification of its enforceability can be accessed online on the judiciary's website -- where it was stated that the courts have no power to compel a counsel to continue with a case if they do not wish to do so.
"Even without the 1960 circular, the common law does not allow the court to stop counsel from discharging himself from representing his client.
"It is a private matter between counsel and his client. I am in agreement with the applicant on this point. The earlier panel was therefore wrong in preventing Haji Hisyam from discharging himself from acting as counsel for the applicant.
"Therefore in law, the applicant had no legal representation when his appeal was heard and dismissed on August 23, 2022," he said.
He explained that the immediate effect of Hisyam's decision to discharge himself, which rendered Najib without effective representation, was that Najib was practically forced to listen to prosecutors telling the court there was ample evidence against him to justify his convictions and sentence.
"On the facts and the law applicable, there is only one conclusion that I can arrive at, and that is, the refusal by the court to grant an adjournment of the main appeals had defeated altogether the applicant’s right to be represented by an effective counsel.
"This warrants a setting aside of the decision by way of review under Rule 137 of the Rules for the reason that it had caused injustice to the applicant for which he had no other effective remedy," he said.
As for whether the earlier panel was unjust in refusing to grant an adjournment of the main appeals, Abdul Rahman said it is pertinent to note there was no allegation, proven or otherwise, that the defence seeking an adjournment of three to four months was a ploy or strategy to delay the hearing.
He said the mere three weeks Hisyam had to prepare was considered insufficient since it was estimated that there were about 30,000 pages of documents in respect of each appeal.
"It was therefore humanly impossible to meaningfully review and digest the documents to be able to formulate their substantive arguments for the main appeals.
Abdul Rahman noted the contention was that Hisyam did the right thing by asking for time to prepare for the main appeals as he would be doing injustice to his client if he had proceeded to submit without adequate preparation, given the seriousness and complexity of the case.
"However the court did not accept such a reason as a valid ground for the grant of an adjournment.
"It was submitted that if at all any blame is to be attributed to anyone, it should be to his lawyers and not the applicant. In my humble opinion that is a fair statement to make.
"There is no justification to make the applicant pay such a heavy price, as the price that he is paying now, for his lawyers’ mistake," he said.
Thus he said the issue is not so much a denial of the applicant’s right to counsel of his choice since he was never denied that right, but whether it was fair in the circumstances to deny his counsel, who had just been appointed barely three weeks before the appeal hearing, an adjournment to better prepare.
He also stated he was making it absolutely clear he was not expressing any opinion or judgment on the propriety of Hisyam’s decision to discharge himself after accepting the brief on such short notice and being unable to argue the main appeals for want of preparation.
Abdul Rahman said it was understood that the Bar Council has commenced an action against Hisyam but stated the move has got nothing to do with Najib whose only interest is to see his lawyer acts in his best interest.
Abdul Rahman said he took an objective view of the overall surrounding circumstances of the case, in particular the fact that Najib was left to fend for himself after his counsel discharged himself.
"It is difficult not to agree with the applicant that he was not given a fair hearing by being denied a reasonable opportunity to prepare and to present his case before the court decided on the fate of his appeals, and his personal liberty.
"This is an elementary rule of natural justice, a breach of which would warrant a review under Rule 137 of the Rules," he said.
The defence was led by Tan Sri Muhammad Shafee Abdullah while ad hoc prosecutor Datuk V Sithambaram, deputy public prosecutors Donald Joseph Franklin and Mohd Ashrof Adrin Kamarul appeared for the prosecution.
