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2025 MarsdenLR 5663

FEDERAL COURT (PUTRAJAYA)
ABDUL RAHMAN, CJ, VERNON ONG LAM KIAT, J, RHODZARIAH BUJANG, J, NORDIN HASSAN, J, ABU BAKAR JAIS, J
Dato’ Sri Mohd Najib bin Hj Abdul Razak – Appellant
Versus
Public Prosecutor – Respondent
CRIMINAL APPLICATION NO 05(RJ)-11-09 OF 2022(W)



Advocates:
Muhammad Shafee Abdullah (with Tania Scivetti, Sarah Abishegam, Muhammad Farhan Shafee, Wan Mohammad Arfan Wan Othman, Alaistair Brandah Norman, Genevieve Vanniashingham, Umi Nafesah Mohd Noor) (Shafee & Co) for the appellant.
V Sithambaram (with Donald Joseph Franklin, Sulaiman Kho Kheng Fuei, Mohd Ashrof Adrin Kamarul and Manjira Vasudeva) (Deputy Public Prosecutors, Attorney General’s Chambers) for the respondent.

The right to a fair trial necessitates adequate legal representation; refusal to grant adjournment undermines this right, potentially resulting in miscarriage of justice.

Headnote:(A) Malaysian Anti-Corruption Commission Act 2009; Penal Code; Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Review of conviction and sentence - Applicant convicted and sentenced to 12 years imprisonment and a fine of RM210 million by the High Court - Application for review focused on the refusals of adjournment requests, raising issues of fair trial and adequate legal representation - Court concluded that denial of adjournment and retention of unprepared counsel constituted violation of natural justice, compelling reversal of previous decisions. (Paras 4-116)

Facts of the case:
The applicant, convicted of multiple offenses, challenged decisions effectively stifling his opportunities for legal representation due to unfortunate timing of his counsel's change and subsequent unpreparedness, prompting motions for adjournment which were denied despite the intricacy of the case and the resultant jeopardy to his right for a fair trial.

Findings of Court:
The Federal Court recognized the necessity of legal representation during appeals, culminating in the finding that the refusal of sufficient preparation time for his counsel infringed upon the applicant’s right to a fair hearing.

Issues: Whether the court's denial of adjournment prejudiced the applicant’s right to a fair trial amidst concurrent legal representation issues - Examined adequacy of counsel's preparation and the implications for due process.

Ratio Decidendi: Courts must prioritize the principles of justice and fair trial, establishing that misrepresentation or lack of adequate preparation constitutes a significant failure affecting judicial outcomes - In this case, a miscarriage of justice occurred, warranting reversal of the convictions. (Paras 80, 104, 116)

Result: Motion for acquittal and discharge granted.

Table of Content
1. conviction and sentence details (Para 1 , 2)
2. applicant's motions for review (Para 3 , 4)
3. inherent powers of the court (Para 5 , 6 , 7)
4. grounds for reviewing a decision (Para 10 , 11)
5. rights to a fair trial and legal representation (Para 12 , 13)
6. importance of a fair trial (Para 18 , 19)
7. counsel's refusal and its implications (Para 34 , 36 , 37 , 38)
8. allegations of strategy to delay proceedings (Para 43 , 45)
9. conclusion for acquittal based on miscarriage of justice (Para 114 , 115)

[1]The applicant was convicted and sentenced to a concurrent imprisonment term of 12 years and a fine of RM210 million in default another 5 years imprisonment by the Kuala Lumpur High Court on 28.7.2020 for 7 separate offences under the Malaysian Anti Corruption Commission Act 2009 , the Penal Code and the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 .

[2]His convictions and sentence were affirmed by the Court of Appeal on 8.12.2021 and perfected by the Federal Court on 23.8.2022. Presently the applicant is serving his imprisonment term at the Kajang prison since 23.8.2022.

[3]By four Notices of Motion the applicant seeks a review of four decisions of this court delivered on 16.8.2022 and 23.8.2022 respectively. The four Notices of Motion are in the following terms:

Notice of Motion No. 1

1. That the decision of the Federal Court on the 16th of August 2022 in the Criminal Appeal No. 05(L) - (289 & 290 & 291) - 12/2021(W) (in the Motions to adduce additional/further evidence and for the disqualification of Justice YA Dato Mohd Nazlan bin Mohd Ghazali in the High Court Trial (WA - 45 (2 & 3)

- 07/2018 and WA 45 5 - 08/2018 and for the nullification of that trial or for it to be declared null and void) wherein the Honourable Federal Court had unanimously dismissed the Applications/Motions altogether in Enclosures 210, 31, 32 (as amended), be set aside. That in the event this prayer is granted by this Honourable Court, this Honourable Court orders a discharge and acquittal of the Applicant or an order for a retrial of the charges in the High Court before a different judge:

Notice of Motion No. 2

2. That the decision of the Federal Court on the 16th of August 2022 in the Criminal Appeal No. 05(L) - (289 & 290 & 291) - 12/2021(W) in the Application for adjournment where the Honourable Federal Court unanimously refused to grant any adjournment on the main appeals, be set aside. A further order is sought for an acquittal and discharge of the Applicant or in the alternative a rehearing of the appeal before this Honourable Court with a newly constituted quorum of not less than 7 Federal Court Judges or as this Honourable Court deems fit and just;

Notice of Motion No. 3

3. That the decision of the Federal Court on the 23rd of August 2022 in the Criminal Appeal No. 05(L) - (289 & 290 & 291) - 12/2021(W) (for the recusal of the Chief Justice) where the Honourable Federal Court unanimously dismissed the application of the Applicant/Appellant to recuse the Honourable Chief Justice from further hearing the said Appeals, be set aside. In the event this prayer is allowed for the Honourable Federal Court to further order a rehearing of this Appeal before a newly constituted quorum of not less than 7 members or as this Honourable Court deems fit and just.

Notice of Motion No. 4

4. That the decision of the Federal Court on 23rd of August 2022 in the Criminal Appeal No. 05(L) - (289 & 290 & 291) - 12/2021(W) (in the main appeals) where the Honourable Federal Court unanimously dismissed the appeals of the Applicant and confirmed the conviction and sentence handed down by the High Court and the Court of Appeal, be set aside. That in the event this prayer is allowed, this Honourable Court orders the acquittal and discharge of the Applicant or in the alternative a rehearing of the main appeal before another newly constituted quorum of not less than 7 Federal Court Judges or as this Honourable Court deems

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