KOTA KINABALU: One of the Sessions Court judges here has made it a point to ask whether lawyers have valid practicing certificate (PC) before commencing a trial following the High Court’s decision to remit back a case to the lower court as a lawyer representing the accused was allegedly found to have failed to renew the PC for 2019.
The judge who heard a sexual offence case yesterday asked a lawyer whether the latter had valid PC for this year, to which the lawyer replied: “Yes, I have”.
The judge further said to the lawyer that “I did not mean to offend you; I just want to put it on record, so judges will know that I have asked this question.”
The Sessions Court judge further reminded that from now on before the said court begins trial of cases, that will be the first question (regarding PC) it will ask lawyers.
The judge said the High Court here had sent back one case to the Sessions Court for a fresh trial based on only one argument which was regarding the alleged invalidity of a lawyer’s PC.
Earlier yesterday, the High Court here had ordered retrial for a woman’s criminal breach of trust case involving RM37,783.88 allegedly committed four years ago.
High Court Judge Datuk Nurchaya Hj Arshad had allowed Yuslin Kulah’s appeal to have her case retried before another Sessions Court judge.
In the proceedings yesterday, the Nurchaya had asked whether it was confirmed that the previous counsel representing the 31-year-old appellant did not have PC for 2019.
Counsel Hamid Ismail, who represented the appellant in the case, told the court that there was a letter from the High Court here confirming the alleged matter.
The letter dated July 7 was found to have confirmed that the previous counsel for the appellant at the lower court had only renewed the PC for 2017, 2018 and 2020.
The prosecution agreed with Hamid on the said matter, and confirmed both the prosecution and Hamid requested for a retrial of the case.
In her appeal which was filed to the High Court here, the appellant stated among other things that after her conviction, it had come to her attention that her previous lawyer had no PC for the year 2019.
She said a letter dated March 11 from Sabah Law Society (SLS) stated that there was no annual certificate issued to her previous lawyer for year ended 2019.
She urged the court to take judicial notice that in Sabah, since the amendment to the Advocates Ordinance, which took effect from July 1, 2017, the High Court will not issue a practicing licence to a lawyer who has not obtained an annual certificate from the SLS.
So, she contended that since her previous lawyer allegedly had no annual certificate for year 2019, there was no PC issued by the High Court registry to the lawyer for that year.
The appellant’s counsel had written letters requesting confirmation from the High Court registry whether it had issued PC to the said lawyer for year 2018 and 2019, but at that material time there was no reply from the court.
The appellant also stated in her submission that being represented by a lawyer with a valid PC is a constitutional right of an accused person as it affected the validity of the trial as decided in a case of Badrul Hisham Hashim v. PP.
In that case, the High Court set aside the conviction and sentence and declared the trial in the lower court was null and void before ordering a retrial.
The reason was the appellant for that case was represented by a lawyer who had no PC during the trial.
The appellant further said in her submission that based on the decision in Badrul Hisham Hashim v. PP, accordingly, her constitutional right had been breached, therefore, the trial before the learned Sessions Court judge was null and void.
The appellant also said that before the recent trial judge heard her case, it was a different trial judge hearing testimonies of six prosecution witnesses and the last hearing was heard on September 18, 2018.
The case was passed to the recent trial judge on May 13, 2019 whose judgment was the subject of the appeal and there was no grounds given in the notes of proceedings for the change of the judge or why the previous Sessions Court judge did not continue presiding over the trial.
In the appeal yesterday, the name of the lawyer who allegedly had no PC for 2019 was not disclosed.
On November 26, 2019, the lower court sentenced the appellant to two years’ jail and a RM5,000 fine, in default, three months’ imprisonment after she was found guilty of embezzling the said money.
The charge stated that the appellant as a personal assistant to the general manager of a company which entrusted her with the money had used it for her own interest.
The alleged offence took place at a hypermarket in Kolombong, Inanam at 11am on September 17, 2016
The charge under Section 408 of the Penal Code carries a jail term of up to 14 years and whipping, upon conviction.
The High Court here fixed today for mention of the case before another Sessions Court judge.