PUTRAJAYA: The Court of Appeal ordered the case of a salesman who was found guilty of drug trafficking and sentenced to death for the offence to be sent back to the High Court for retrial.
A panel of three judges led by Judge Datuk Vazeer Alam Mydin Meera, in a unanimous decision on Monday (Oct 9), ordered a retrial of the case after allowing the appeal by Cheah Wai Luck, 36, to set aside the decision of the Kuala Lumpur High Court which sentenced him to death.
He said there was merit in the appeal.
"Based on the facts of this case, we think that a retrial order is appropriate so that the appellant's defence can be properly heard by the trial judge.
"Therefore, this case is returned to the High Court for a retrial,” he added.
The other two judges sitting with Vazeer Alam were Datuk Azman Abdullah and Datuk Azhahari Kamal Ramli.
In his judgement, Vazeer Alam said a lawyer appointed by the accused must use all his professional competence to defend the accused.
"The lawyer should get appropriate instructions from the accused. In this appeal, the appellant (Cheah) was on remand (throughout the trial). The lawyer should meet and communicate with the appellant to obtain appropriate instructions so that the appellant's defence can be presented to the court comprehensively.
"In this case, we are satisfied that the lawyer did not meet and get instructions (from the accused) until it was detrimental to the defence case. We are satisfied this is an injustice to the appellant.
"Therefore, the appeal against the conviction and sentence is allowed and the decision of the High Court is set aside," said Judge Vazeer Alam.
Cheah was appealing against the decision handed down on Feb 26, 2021, by Kuala Lumpur High Court Judge Datuk Mohd Nazlan Mohd Ghazali (now Court of Appeal Judge) in sentencing him to death after being found guilty of trafficking 184.35g of methamphetamine.
He was charged with committing the offence at 1am on June 17, 2017, in a condominium in Setapak.
The charge, framed under Section 39B (1) (a) of the Dangerous Drugs Act 1952 and punishable under Section 39B (2) of the same law, provides the death penalty or life imprisonment, upon conviction.
Earlier, lawyer Nur Hayati Omar, representing Cheah submitted that the lawyer, who represented Cheah then, did not meet him (the appellant) in prison, hence there was no opportunity (for Cheah) to tell the truth and bring up the name "Ah Chun" to be highlighted by the lawyer at the prosecution stage.
"Due to the lawyer's failure to meet the appellant before the trial of the prosecution case began, the important role of the person named "Ah Chun" in the appellant's case failed to be raised at the prosecution level,” she said, adding that "Ah Chun" had access to the appellant's house before the appellant was arrested.
Nur Hayati was assisted by lawyer Zulkifli Awang.
Meanwhile, deputy public prosecutor Mangai Krishnan submitted that it was unfair to rule that the appellant's counsel at the High Court was incompetent without giving a chance for the person to clarify.
"Without establishing the facts, the defence of flagrant incompetence of counsel should fail. It will be unfair to the counsels if this court accepts the appellant's allegation without giving them a chance to accept or deny the allegations,” she said.- Bernama
