Losing my first death sentence appeal

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Losing my first death sentence appeal

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In my thirties, despite having a clutch of capital punishment trials under my belt, and arguing matters in the Court of Appeal, I had not yet done any capital punishment appeals at the Federal Court.

That changed one afternoon when a letter came in the Court of Appeal inviting me to be appointed counsel for a drug trafficking appeal. It was an appeal against conviction and sentence.

My client was a Malay man in his late forties. I’ll call him Mat. He was tall and big. He was a light browned skin giant. The soft lines on his face had not yet hardened despite serving about four years when I met him.

Mat was charged for a bag of drugs found hidden in the boot of his car. The prosecution’s case was Mat sent his car to a workshop for service around noon. Two of the workers recognized and spotted him returning at around five to the workshop with a bag he put in the boot of his car. Mat left and then came back again at about seven-thirty to pick his car up. On his way home he was caught at a roadblock.

His defence at trial of non-exclusive possession failed in the High Court. The workshop workers’ evidence placed him with the bag of drugs and the car. High Court found possession as a matter of fact and presumed trafficking which set Mat for a mandatory death penalty.

By the time I met Mat, he had already been schooled by his Kajang inmate brethren about the ins and out of criminal procedure and criminal law. He spoke with a certain degree of legal acuity about the arguments that could be taken. He knew every little fact and every turn of argument that went to support his case. He knew them all by heart. They still glowed with hope for him.

This was not an uphill task, it was a vertical concrete wall ten miles up.

There was an error in the grounds of judgment about the time he went back to the workshop. The trial judge mistakenly wrote that Mat went back at seven-thirty instead of five in the evening. It was a typo. The judge did not correct his judgment. Since it was not corrected, that meant the typo stood, which meant my client would only have gone to the workshop twice and not thrice as alleged by the prosecution. Since he appeared once, he could not have placed the bag there at five.

Reading the judgment as a whole, however, it was clear the judge made a typographical error. The judge accepted the workshop worker’s evidence. My point was simply this: Give my client the doubt of the typo and drop the conviction to one of possession under section 39A DDA52, which provided for heavy imprisonment and whipping. I was not hoping for an acquittal.

If you think that argument is lame, fair enough. I even agree. But something is better than nothing, especially for a death penalty case. To plead guilty or concede is certain death. Challenging the charge just delays the inevitable. Such was it with Mat’s case.

I don’t remember the Court of Appeal hearing except that it was short, intense and ended in a dismissal of Mat’s appeal. His death sentence was confirmed. Mat asked me to continue as his counsel for his appeal in the Federal Court. I was surprised. I thought he would sack me and appoint another counsel since I lost.

So on we went to the Federal Court. The hearing again was short and intense. I pushed the point much harder this time than I did at the Court of Appeal – not so much that he should be acquitted, but the charge should be brought down to one of possession. I made as much as I could out of the typographical error like a child riding a rocking horse. The court was not with me and dismissed Mat’s appeal.

I immediately felt weary and a great sadness overcame me.

Although I had done death penalty trials, losing an appeal at the Federal Court had a sense of irreversibility and finality to my client’s fate. Now my client will die, I thought to myself. I failed to prevent his execution.

That was how I thought at the time. I was miserable. I know he had bad facts. Mat knew it too. I knew there was little I could do about it. And yet, I somehow felt it was my fault. I felt embarrassed to see my client. What was there to tell him? He already knew the appeal was dismissed. There was nothing else I could offer him except my commiserations. What was the use of that?

Even though I could make the distinction in my mind that I did not send him to his death, that it was not my fault, I still could not help but feel bad about it all, like a bystander witness to a horrific road accident.

I packed my file and then forced myself over to Mat in the dock. He seemed so small sitting in the dock.

“Hi Mat. Our appeal was dismissed. I am very sorry about that. I wish I could have done better.”

“Nothing to be sorry about, Encik Fahri. You did your best. That is all you can do.”

“Yes, but I lost. I felt we deserved at least a 39A. I am sorry, Mat. I should have at least got that.”

“No, no. Thank you for doing your best for my appeals. I know I put a lot of pressure on you. But I know it was not an easy point to win.” He patted me on the shoulder while cuffed and being led out of the dock.

“It’s okay. I am satisfied with how you argued my case. That is why I asked you back for this appeal. You got semangat. Keep it going. Don’t blame yourself. What is done is done…”

He was then led to the holding cells below the Putrajaya Palace of Justice. That was the last I saw of him.

After being told his appeal was dismissed, which meant he was going to be hung to death, instead of getting upset and miserable about it, Mat was comforting his lawyer – me – over the loss of his appeal and encouraging me to keep going.

It only struck me later how composed Mat was and how utterly self-absorbed I was at the time.

I have learned to deal with such losses better since I took advice from a convicted drug trafficker.

2 thoughts on “Losing my first death sentence appeal”

  1. Rare to know a convicted felon was as nice as you have described . Based on your limited given fact ,could there be exclusive possession since the said car was left unattended (?) at the service workshop ?.I would pursue on that contention instead of the minor typo error point.

  2. You know Farhi, you should only feel miserable for your client. Not because he was convicted, you admit your defence was a hope and a prayer. But because the state is going to murder him. They will plan it down to the second and certify their guilt with medical evidence. And society is to condone this murder because of an ancient, Old Testament code.


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