15 July 2021 :
A Yemeni national on 13 July 2021 escaped the gallows in Malaysia for a charge of trafficking 1.8kg of methamphetamine following his successful bid to quash a verdict of retrial from the Court of Appeal.
The Federal Court on 13 July allowed Yahya Hussein Mohsen Abdulrab’s appeal to quash his conviction by the High Court, citing the incompetence of his lawyer at the trial.
The apex court also set aside last year’s Court of Appeal ruling for a retrial.
A 3-member bench chaired by Chief Justice Tengku Maimun Tuan Mat said Hussein’s previous lawyer was “flagrantly incompetent”.
The top judge said the decision was based on further evidence allowed by the Court of Appeal which showed the lawyer’s incompetence. Tengku Maimun, however, said the appeals court was wrong to order a retrial instead of a complete acquittal.
The other judges on the panel were Mohd Zawawi Salleh and Nallini Pathmanathan.
Lawyers Muhammad Shafee Abdullah, Wan Aizuddin Wan Mohammed and Rahmat Hazlan appeared for Hussein while deputy public prosecutor Hanim Mohd Rashid represented the prosecution.
Rahmat said the apex court decided that a retrial would be unfair as there had been a breach of constitutional safeguards and as a result, the trial process itself was unfair.
“That unfair trial failed the adversarial process,” he said, adding that Hussein had been incarcerated for more than 8 years.
The judges were also of the opinion a retrial would result in Hussein languishing further in jail, he added.
On the merits of the case, Rahmat said additional evidence clearly showed that there was more than a reasonable doubt in the prosecution’s case and that even a reduction to the lower offence of possession was unsafe.
Hussein is alleged to have committed the offence at the arrival hall of the Tawau airport at around 11am on 25 July 2013.
The Court of Appeal in its judgement said Hussein’s lawyer had deprived him of a fair trial, resulting in a miscarriage of justice.
Hussein’s defence was that he had been requested to carry a briefcase by a person named Mickey and therefore did not have knowledge of the bag’s contents, which ought to have been raised by his lawyer.
“The failure to raise this matter caused the appellant to be convicted for a very serious offence, resulting in the death penalty,” the Court of Appeal said.
