PUTRAJAYA (July 13): A Yemeni national facing a drug trafficking charge over the past eight years walked free today, after he was acquitted by the Federal Court.
The apex court allowed Yahya Hussein Mohsen Abdulrab’s appeal against a retrial of his charge, as ordered by the Court of Appeal.
A three-member bench accepted the argument of Yahya’s lawyer Tan Sri Muhammad Shafee Abdullah that a retrial would be unfair, as it would be a breach of the constitutional safeguard.
The unanimous decision was made by Chief Justice Tun Tengku Maimun Tuan Mat,Tengku Maimun and Federal Court judges Datuk Seri Mohd Zawawi Mohd Salleh and Datuk Nalini Pathmanathan.
The High Court in Tawau had in 2014 found Yahya guilty of trafficking 1,800.28 grams of methamphetamine at the arrival hall of the Tawau Airport at about 11am on July 25, 2013.
The court sentenced him to death under Section 39B of the Dangerous Drugs Act 1952.
However, a Court of Appeal bench led by Justice Datuk Yaacob Md Sam last year ruled that Yahya was deprived of his right to a fair trial, due to the “flagrant incompetence” of the counsel who represented him during the trial.
The bench, which also comprised Justices Datuk Hanipah Farikullah and Datuk Abu Bakar Jais, went on to quash the conviction and ordered a retrial.
The Yemeni appealed to the Federal Court, where Shafee argued that his client should be given an acquittal, rather than a retrial.
“The accused has been incarcerated for more than eight years, and it would be unfair to order a retrial and allow Yahya to languish further,” the lawyer said.
The apex court agreed the evidence clearly showed there was reasonable doubt that had arisen in the prosecution’s case, and an order for retrial or a reduction to a reduced offence of possession was unsafe.
Hence, an order of discharge and acquittal was given.
Shafee, who appeared with Wan Aizuddin Wan Mohammed and Rahmat Hazlan, said in a statement that this is one of the rare cases where a counsel’s incompetence was invoked to ground a serious capital case of drug trafficking.
He noted that the Court of Appeal had applied this principle, and the Federal Court today not only applied the principle but went further to order an acquittal.
“This would be the first case in Malaysia where this point is invoked, which led to the accused being acquitted rather than a mere retrial,” Shafee said.
DPP Hanim Mohd Rashid appeared for the prosecution.
