Malaysia Case Law: Decisions & Judgments

Topic

Ineffective assistance of counsel

Legal area

Court

9 Jan 2024

DEVARAJAN PILLAI A/L MANIKAM [ ]

Citation

C-05(M)-182-05/2023 (Mahkamah Rayuan)
Court

M
Case number

C-05(M)-182-05/2023 (Mahkamah Rayuan)

The appeal is dismissed: the discovery statements were admissible under s.27 and led to distinct discoveries; identification by the mother and circumstantial evidence established the body as the deceased; pathologist evidence and circumstances supported death by blunt force trauma rather than drowning; the appellant's knowledge of locations of body and concealed weapons without explanation supported involvement; allegations of counsel incompetence were not flagrant nor causative of miscarriage of justice; therefore conviction is affirmed and, applying Act 846, the death sentence is commuted t…
4 Jul 2023

KOH CHOO MENG

Citation

JB-42S-5-10/2021 (Mahkamah Tinggi)
Court

High Court
Case number

JB-42S-5-10/2021 (Mahkamah Tinggi)

On the totality of admissible evidence (requisition forms, CCTV, transporter receipts, purchase bills, witness testimony and payment records) the High Court found the prosecution proved beyond reasonable doubt that the appellant dishonestly moved and sold company aluminium without consent and voluntarily assisted in disposing property he knew or had reason to believe was stolen; alleged failures of trial counsel did not amount to flagrant incompetence depriving the appellant of a fair trial; Section 414 liability is independent of proof of Section 381; appeals dismissed and convictions and se…
4 Jul 2023

KOH CHOO MENG

Citation

JB-42S-8-10/2021 (Mahkamah Tinggi)
Court

High Court
Case number

JB-42S-8-10/2021 (Mahkamah Tinggi)

On the totality of admissible evidence (CCTV, material requisition forms, transporter receipts, purchase bills and consistent witness testimony) the court found dishonesty and lack of employer consent proved for s381 and voluntary disposal with knowledge or reason to believe property was stolen proved for s414; defence counsel's omissions did not amount to flagrant incompetence causing miscarriage of justice and prosecution had sufficiently presented material evidence; therefore convictions and sentences are safe and affirmed.
4 Jul 2023

KOH CHOO MENG

Citation

JB-42S-10-10/2021 (Mahkamah Tinggi)
Court

High Court
Case number

JB-42S-10-10/2021 (Mahkamah Tinggi)

On the totality of documentary and oral evidence (CCTV, material requisition forms, transporter receipts, purchase bills and witness testimony) the High Court found the trial judge correctly concluded appellant dishonestly moved and disposed of company aluminium without consent; counsel's omissions did not constitute flagrant incompetence producing miscarriage; prosecution properly presented material evidence and s414 offences are stand-alone and proven. Consequently convictions and sentences are safe and were affirmed.
4 Jul 2023

KOH CHOO MENG

Citation

JB-42S-6-10/2021 (Mahkamah Tinggi)
Court

High Court
Case number

JB-42S-6-10/2021 (Mahkamah Tinggi)

On the totality of admissible evidence — CCTV, material requisition records, transporter receipts, purchase bills and witness testimony — prosecution proved beyond reasonable doubt that the appellant dishonestly removed and disposed of company aluminium without consent; the prior conviction under s381 was not a precondition for separate convictions under s414 which is a standalone offence; trial counsel's omissions did not amount to flagrant incompetence causing miscarriage of justice; no adverse inference was warranted for non-production of the named witnesses or planning document. Therefore…
4 Jul 2023

KOH CHOO MENG

Citation

JB-42S-9-10/2021 (Mahkamah Tinggi)
Court

High Court
Case number

JB-42S-9-10/2021 (Mahkamah Tinggi)

On the totality of admissible evidence (Material Requisition Forms, CCTV, company employee testimony, transporter receipts, buyer purchase bills and cheques) the High Court found the Sessions Court correctly concluded the appellant dishonestly moved company aluminium without consent and disposed of it for personal gain; the claim of flagrantly incompetent counsel failed because omissions were not shown to occasion miscarriage of justice; failure to call certain witnesses or produce planning documents did not require adverse inferences; s414 is a standalone offence and convictions on s381 and…
26 Apr 2022

Mohammad Jobi Ullah [Jabatan Peguam Negara]

Citation

P-05(M)-255-08/2020 (Mahkamah Rayuan)
Court

M
Case number

P-05(M)-255-08/2020 (Mahkamah Rayuan)

The Court found the prosecution proved beyond reasonable doubt that the appellant intentionally inflicted a head injury by striking the deceased with a rice cooker and that the injury was sufficient in the ordinary course of nature to cause death (s.300(c)), the appellant failed to establish grave and sudden provocation on the balance of probabilities, and the alleged failings of trial counsel did not rise to flagrant incompetence causing a miscarriage of justice; therefore the appeal was dismissed and the conviction and death sentence affirmed.
5 Sept 2021

YAHYA HUSSEIN MOHSEN ABDULRAB PUBLIC PROSECUTOR

Citation

05(M)-43-04/2020(S) (Mahkamah Persekutuan)
Court

M
Case number

05(M)-43-04/2020(S) (Mahkamah Persekutuan)

On an objective assessment the trial counsel's failures were flagrantly incompetent and deprived the appellant of his constitutional right to a fair trial; the additional evidence on appeal corroborated the appellant's defence and rebutted the statutory presumption of knowledge under section 37(d) DDA on the balance of probabilities; the conviction was therefore unsafe and was quashed with the appellant acquitted and discharged; a retrial was inappropriate given the prolonged incarceration and prejudice to the appellant.
30 Mar 2021

SRI GANESH A/L JAYA BALAN

Citation

B-05(M)-120-03/2019 (Mahkamah Rayuan)
Court

M
Case number

B-05(M)-120-03/2019 (Mahkamah Rayuan)

Court held Sri Ganesh's conviction and death sentence for trafficking under s39B(1) Dangerous Drugs Act 1952 was safe because evidence proved actual possession and knowledge; by contrast the conviction of Agnish for possession under s39A(2) was unsustainable because the trial judge accepted that Agnish lacked knowledge (mens rea), so the mental element was missing and acquittal was ordered; the prosecution's cross‑appeal on sentence for Agnish was dismissed.
16 Mar 2021

MOHD RIDZUAN BIN YUSOF

Citation

J-05(SH)-99-02/2019 (Mahkamah Rayuan)
Court

SH
Case number

J-05(SH)-99-02/2019 (Mahkamah Rayuan)

Permohonan ditolak kerana keterangan yang dikemukakan tidak memenuhi kriteria keterangan tambahan: ia bukan keterangan baru yang material kepada pertuduhan, tidak relevan kepada soal kebersalahan yang dibicarakan, dan tidak boleh dipercayai untuk menimbulkan keraguan munasabah; surat yang dikemukakan tidak mengakui konflik kepentingan seperti didakwa dan fakta yang dibangkitkan sudah terdapat dalam rekod; permohonan merupakan afterthought dan penyalahgunaan proses.