Even though I have conducted criminal cases for my entire career in practice, twenty-plus years now, doing everything from minor crimes of theft to attempted murder in the subordinate courts up to the High Court for drug trafficking, kidnapping and murder, and conducting criminal appeals and applications in the Court of Appeal and Federal Court, I am not known as a criminal litigator.

Some are surprised to know I conduct criminal cases at all. I am generally and primarily known for my involvement in civil, corporate, constitutional and administrative law disputes. The reported cases will testify to that. But it will also testify to my criminal dabbling too.

And that is fine. Despite my long experience in criminal practice, I have never thought of myself as a criminal litigator. I have never introduced myself as one either.

To me, a criminal litigator does criminal cases day in, day out, relentlessly doing one criminal case after another. One police station or another most days. Theft in the morning, drug trafficking in the afternoon, sodomy tomorrow, robbery the day after and two child molestations the week after with pleas of guilt, bail and remand applications running alongside every day.

I don’t have such a practice.

I think of myself as a litigator with a passion for conducting criminal cases and with a concern for the proper running of the criminal justice system.

I don’t let the fact that I am not retained to do criminal work often get in the way of cultivating a criminal litigation gig. I have had the good fortune of always having a few criminal cases in hand throughout my career. The best way to do that is to look for those desperate for legal representation.

For that I have to thank the Bar Council Legal Aid Clinic (Kuala Lumpur) (‘LACKL’) for being my main source of criminal work in my early days. These days most of it comes as court-appointed counsel from the High Court or appellate courts, or from the National Legal Aid Foundation (known as the ‘YBGK’, Yayasan Bantuan Guaman Kebangsaan).

That is not to say all my criminal cases have come from there.

From time to time, I am pleasantly surprised to find myself retained for criminal matters. I am grateful for those occasions because they are uncommon and I am pleased to have my efforts acknowledged with remuneration.

I have also had many opportunities slip by. I keep the prospects of those I advise grounded and realistic about their options instead of entertaining the speculatively stupid, absurd or fantastic. I also tell them I only defend them in court and have no jalan.

There were two times in my career I intensely conducted criminal cases for a time.

The first was around the 1999 – 2005 period when I was a young, motivated lawyer hungry for experience and learning. I took on all kinds of criminal and civil cases at the LACKL with gusto to sandpaper polish my meagre advocacy abilities and soak up as much experience as I could. That period was foundational to my criminal, civil and advocacy experience.

The second was around the time I set up the firm, 2016 – 2017. My colleagues and I did not have much paid work, because we had few clients back then, so I signed us up for a slew of criminal matters from the legal aid clinic and YBGK to keep ourselves busy.

The area of criminal litigation is wide these days.

There is the blue-collar crime of theft, robbery, and grievously injuring someone. There is the white-collar crime of securities offences, stock market manipulation, and money laundering. There are now specialist courts: anti-corruption, child-centric, and cybercrime, for example. There is a slew of statutory offences for doing or not doing something or other. New ways of cross-examination have to be learnt for child offence and security offence cases.

My cases are those of the old-fashioned variety of blue-collar crime. Someone drug traffics. Someone hurts or kills another person. Someone destroys someone else’s property, kidnaps, attempts murder or cheats another out of money. Those kinds.

These days criminal litigation makes up a maximum of three per cent of my work. I find it amusing when applicants, interns and lawyers write in telling me they want to practice with me because they are interested in criminal legal practice. These days I have barely more than a handful’s worth at any one time.

In terms of fee contribution to the firm, criminal legal practice has been and is almost non-existent compared to my civil and even Syariah work. The court counsel fees serve as a token of the fees we should be paid. The YBGK fees are of the at-least-we-get-paid-something rate. At times, I do these cases at a cost to myself. But then, before YBGK, back at the LACKL, we were not remunerated at all except for a transport claim of RM 50.

So why practice criminal law if there is no money in it and even at my own expense?

I know this may sound crazy to some, but I do it because I genuinely enjoy it. I get restless for it if I don’t get my fix for criminal cases by way of an appeal or a trial. I enjoy them in their own way. Both have their respective pleasures and challenges. It’s the same skillset as my advocacy for civil litigation just tweaked for the criminal setting.

I like the law involved with criminal litigation. I like unearthing facts from the evidence like an archaeologist would. I enjoy making sense of what happened as a historian could. I savour cross-examining cops for personal therapeutic benefits. I like crafting submissions for criminal cases. It is a pleasant break from civil practice.

Criminal litigation challenges my analytical, imaginative and advocacy abilities. It is about finding the gaps in the prosecution’s case. There is also recognizing an emerging gap or an unexpected weakness in the prosecution’s case as it unravels. We have to think quickly and make many immediate judgment calls on the fly without the security of a pile of affidavits or bundles of documents at hand as we would in civil litigation cases.

All that keeps me sharp and my outlook diverse. I meet people I would otherwise never meet or even know about and learn about them. I appreciated very quickly how fortunate I was. I get to roam about a different area of law, away from my civil paper-heavy matters. I acquire a criminal litigation dimension which informs my overall legal sensibility and consideration of cases. Plus, there are interesting stories to tell others from my criminal cases.

And in taking up the mantle of defence, I am contributing to the running of the criminal justice system. It cannot function with just a judge and prosecutor alone. That is tyranny. The system requires all three to be in place for it to work as it should. Each is necessary for the system to be whole. Justice is an emergent phenomenon from those three components.

The prosecutor weaves a narrative and produces evidence of why a person should be convicted of a crime. The defence subjects the prosecution’s narrative and evidence to intense scrutiny and tests them against predictable legal standards. The court is there to consider whether to accept the prosecution’s case on its own and whether the defence raises a reasonable doubt against the charge against them.

All three appointed need to be people of independence, integrity, industry, interest and intelligence (5i qualities). Perhaps that is too much to ask for, but if any of the three lack these qualities, the criminal justice system will entropy and corrupt, as any system would.

As a lawyer, I do my part for the criminal justice system by defending an accused. Anyone accused of an offence is entitled to a defence. Doing my part means, as best as I can, challenging the prosecution’s evidence, putting my client’s defence (assuming there is one) and articulating his arguments at trial or an appeal as effectively as possible whilst expressing those 5i qualities.

That is easier said than done when the stakes are high, cynicism is wide and deep, there is no equality of arms, due process is statutorily tilted against an accused, the machinery of state is working against him, and each human being on trial is reduced to a mere statistic for someone else’s achievements.

These are the things we have to put up with if we want to practice criminal law. It will not get in the way of the pleasure of the criminal practice.

But only if we do not pay too much attention to it.