The Sure Win Case

I call such cases ‘sitters’. I don’t often get sitters. Rarely, actually.

But that’s fine with me. On the regular, I’d prefer not to do sitters. If I did, I would be doing straightforward debt claims, such as credit card and housing loan claims, orders for sale and the like. The ‘losers’ too; these are cases which are a ‘sure lose’.

On the regular, I prefer the 50/50s, the 60/40s, the 70/30s, even the 80/20s – and anything in between. These are the cases where we think the chances of success or failure are uncertain. Their chances of success are ambiguous. I call ’em the ‘ambis’. M-Bees.

Just to be clear, when I say sitter, loser and ambi – I refer to our expectations of success as legal practitioners given the facts, the law, the client, the court, the opponent, the opposing litigant, etc.

It’s the certainty of a sitter or a loser that makes them uninteresting and tedious. It’s like watching a movie we know the ending to. Maybe we’ve even seen it before. Whatever the case, we’re just going through the motions to reach that obvious end. Most litigants tend to believe their case is the winning case.

Having said that, running a sitter is potentially anxiety-laden compared to a loser. Sitters sometimes make me anxious. The anxiety stems not because I think our arguments unassailable but because I cannot see any viable or plausible counterargument, cannot detect any flaws or any downsides in my sitter of a case. It feels like being unwilfully blinded.

Aside from anxiety, there is also a sense of dread about it. If the client and I agree the case is a sitter then our mutual expectations are of a sure win. But this is litigation – where nothing is certain. So the possibility of losing a sitter is always present. No lawyer wants to be the one to lose a sitter.

Losers are the easiest of the lot because there is no expectation to win. No expectation means no pressure. No pressure means no anxiety, less stress. If we win, great. We’ll be lauded as a Houdini, a miracle worker, or magician. If we lose, well, that’s what we were expecting, isn’t it? What else you want lah?

There was a sitter I enjoyed several years back.

It was a criminal appeal. I was appointed by the Court of Appeal to resist an appeal by the prosecution against the acquittal of the accused of a charge of drug trafficking in the High Court. After reading the record of appeal, I knew I had a sitter. I’d even call it a sumo sitter of a case. That’s what I felt the odds of success were for me.

The facts were these: My client and another person who was never found were in a delivery van, which stopped outside a house somewhere in Selangor. The other person was the driver. My client was the passenger. He sat upfront with the driver. He was not part of the delivery service but had hitched a ride with the driver who was an acquaintance.

Almost immediately after they stopped at the house they were ambushed by a police squad that lurked nearby. The driver who had a lame leg managed to escape somehow. My client who was healthy and whole was caught instead. According to the arresting officer, the driver ran into a nearby forest. Despite giving chase, he outran and evaded the entire police squadron because of the forest.

The High Court threw out the case at the end of the prosecution’s case, known to lawyers as the prima facie stage (Latin for ‘at first appearance’). The investigating officer who gave evidence had prepared a sketch plan of the area. In his sketch plan, there was no forest area. Instead, the entire area was a fully developed housing area.

The court is always willing to accept a certain degree of inaccuracy by a witness. But not to this extent! You just can’t get the existence of a forest wrong. You just can’t.

Understandably, in his written grounds, the judge savaged the arresting officer and found him as fact to be lying. His lordship also raised serious doubt over the police squadron’s competency – how is it they could not arrest the lame-legged man driver but managed to capture the whole and healthy passenger instead? The judge’s written grounds were emphatic, damning and unimpeachable.

To this day, I wonder why the prosecution bothered to appeal such a loser. And in doing so, delivered to me a sitter. I treat such instances as legal presents to be savoured and cherished. I prepared a short written submission for that case. Probably cited one case.

I felt the case was so ridiculously obvious that I should not even be called upon to submit. On the day of the hearing, a petite, timid and deferential-looking lady came up to me and introduced herself as the deputy public prosecutor conducting the appeal. Her face was tense. There was a sense of resignation about her.

I felt sorry for her. Truly. It was like watching a sheep going into the slaughterhouse of its own accord.

“Encik Fahri, there are two matters I would like to raise with you. Do you have some time?”

“Yes, of course. What’s up, Puan?”

“Firstly, this is our written submission. I am sorry I am serving it late. It… it was challenging to prepare.”

“Don’t worry. I completely understand.”

“I hope you won’t object to my late service.”

“No worries, Puan. I won’t.”

“Thank you. The second is I intend to make an oral amendment to the date in the notice of appeal. The date of conviction is incorrect. I know it’s not a big deal but I have to correct it.”

“Of course not, Puan. I won’t object. Small matter. You can tell the court that for both matters.”

“Thank you, Encik Fahri.” She nodded and whisked herself back to her seat.

We were third or fourth on the list. When our turn came, the prosecutor got to her feet. She made the application to amend the notice of appeal. Apologized to the court for the late submission. Then began her submission.

“My lords, this is an appeal from the…”

The chairing judge decided to spare us the formalities of a hearing and cut to the chase.

“Counsel, why did chambers appeal this decision?”

Boom, baby. Mini-fist-pumped that one. After hearing that I felt my chances of being called on to respond went from maybe to extremely low.

“Yang Arif? Why?”

“Yes. Why? Did you read the High Court decision?”

“Yes, Yang Arif.”

“After reading it you still want to appeal?”

“Yang Arif, if I can take you to …”

“No, no. The High Court judge said the arresting officer was lying. He said there was a forest that the driver ran into. But the IO’s sketch plan shows it was a housing area. There was no forest! Did you read it or not?”

“Yes. My instructions are to appeal.”

“Instructions from your superiors?”

“Yes.”

“The judge said it was unbelievable the driver with the lame foot could escape but the healthy passenger was caught. I agree. How did that happen with what seven, eight policemen in the raid? What were they doing? This is not explained. Are your seniors aware of this? These are finding of facts, you know?”

“Yang Arif, if I can..”

“Chambers shouldn’t waste the court’s time with these kinds of appeals. What do you expect to achieve? The arresting officer lied. It’s a finding of fact. Your case is over. Please tell your superiors not to appeal cases like this. Don’t simply file frivolous appeals. Consider the judgment thoroughly and properly before appealing. We see no merit in this appeal. Eh, where is the respondent’s counsel?”

I stood up immediately. “I am here, my lord.”

The chairing judge turned to me. He lowered his glasses.

“Ah, well, we don’t need to hear you. This appeal is dismissed. Thank you. Next appeal.”

The prosecution did not appeal against the Court of Appeal’s decision.

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