‘Disturbing’ trend of individuals blaming their lawyers to challenge convictions: Judge

A Court of Appeal judge has highlighted a “disturbing, ongoing trend” of convicted individuals making baseless accusations against their former lawyers as grounds for challenging their convictions and sentences.

Serious allegations against former counsel should not be lightly made and must be substantiated with compelling evidence, said Justice Steven Chong.

Justice Chong made the comments in a written judgment on March 28 in which he dismissed a post-appeal application by Muhammad Salleh Hamid, who was seeking a review of his conviction.

Salleh was sentenced to death in 2019 for trafficking methamphetamine. His appeal was dismissed in 2020.

In the present application, he argued that his former lawyers were negligent or incompetent and had failed to abide by his instructions to raise certain evidence in court.

Justice Chong said none of Salleh’s allegations of inadequate legal assistance passed muster.

He added: “The court takes an extremely dim view of such ill-founded and spurious allegations against former counsel, wielded opportunistically to raise doubts about the propriety of the applicant’s conviction and/or sentence.”

Justice Chong said the appellate courts will not hesitate to order legal costs against those who persist in making unsustainable and unfounded allegations against their former lawyers.

His comments follow similar remarks by the court in other cases in recent years.

Citing the judgment in a 2022 case, he said: “Unfounded allegations are reprehensible and unjust to counsel who have tried their best to assist clients in difficult situations, often without much material or other reward.”

Justice Chong noted that over a space of three weeks, apart from Salleh’s case, the Court of Appeal heard two other cases involving convicted individuals whose arguments were premised on allegations of missteps by their former lawyers.

One case involved a man who was sentenced to death for heroin trafficking.

He filed an application to effectively seek a retrial so that he could pursue a completely new defence, which contradicted the one he had run at his trial.

The other person was a man who was handed 13 years’ jail and 12 strokes of the cane for raping the unconscious wife of another man, who had invited him over to do so.

The rapist was one of seven men implicated in a case where husbands with wife-sharing fantasies had their own partners drugged and then raped by others.

In Salleh’s case, he was represented by Mr Ragbir Singh Bajwa for his trial, and by Mr Tito Isaac for his appeal.

On July 22, 2015, Salleh had instructed another man, Muhammad Abdul Hadi Haron, to pick up two bundles of methamphetamine in Johor Bahru.

Both Salleh and Hadi were arrested later that day.

Salleh claimed he told both lawyers that he had only $3,800 on him when he was arrested.

He alleged that the sum was enough to pay for only 250g of methamphetamine, which is the threshold amount for the death penalty. 

Salleh said this evidence supported his defence that he had intended Hadi to collect only 250g of methamphetamine, and not the two bundles totalling 500g.

He alleged that Mr Bajwa “deliberately left out” this evidence even after they had discussed this.

However, Mr Bajwa said such a conversation never took place. Instead, their discussions were focused on WhatsApp messages, with the aim of showing Salleh’s surprise at the quantity of drugs collected by Hadi.

Contemporaneous meeting notes also did not indicate any discussion of this evidence.

Justice Chong found that the failure to raise the evidence was not due to any alleged negligence or incompetence by Mr Bajwa.

In a similar vein, Salleh claimed that Mr Isaac initially agreed to include this evidence in his appeal petition, but later removed it without his consent.

In response, Mr Isaac deposed that Salleh agreed for this point to be removed following a discussion, and supported this with a letter from his former client.

Justice Chong said it was clear that the decision not to raise the evidence during the appeal was a deliberate and considered choice by Salleh.

Salleh also claimed that Mr Bajwa unilaterally decided to run a defence establishing him as a drug courier, rather than one where he was a trafficker, albeit for a quantity of drugs below the death penalty threshold.

Justice Chong noted that in assessing if there was inadequate legal assistance as a ground for challenging a conviction, the threshold was a high one.

The judge said there was no evidence that Salleh had instructed Mr Bajwa to run a different defence.

In any event, the judge added, Salleh could have raised the evidence himself when giving his testimony in court, yet he did not do so.

Source: The Straits Times © SPH Media Limited. Permission required for reproduction.

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