Hisham Nazir & Co.

On the court record

The firm's record shows how a fair-trial objection based on uncalled co-arrestees can render a drug-trafficking conviction unsafe, and how the appellate courts approach the substitution of a term of imprisonment for a capital sentence in murder cases.

Hisham Nazir & Co. appears in the corpus as counsel in serious criminal appeals and commercial-tort litigation, argued largely before the Court of Appeal (Mahkamah Rayuan) in both English and Bahasa Malaysia.

On the criminal side the firm acted for appellants in capital and near-capital appeals. In one dangerous-drugs matter the firm appeared where drugs had been found in a residential house in which the appellant was arrested together with several other persons, only the appellant being charged, and the court held that the prosecution's failure to offer the other arrestees as witnesses to the defence had offended the principle of a fair trial, so that the conviction and sentence were not safe and the appeal was allowed. In a connected pair of murder appeals, argued in Malay, the firm appeared where death sentences imposed for an offence of kesalahan membunuh (the offence of murder) were revisited, the court finding merit in setting aside the capital sentence and substituting a term of penjara tempoh tiga puluh lima (35) tahun (imprisonment for a term of thirty-five years) with strokes of the rotan, the analysis engaging common intention, statements leading to discovery, pathological evidence of blunt-force trauma and reasonable doubt.

On the civil side the firm acted for the respondent in commercial litigation over the tort of trespass to goods, where the court distinguished trespass to goods, conversion and detinue, and addressed the recoverability and foreseeability of economic loss and the claimant's election between costs and expenses or loss of profits.

The firm's record is a criminal-appellate practice of some weight, engaging the fair-trial consequences of uncalled witnesses and the appellate treatment of capital sentences, alongside commercial-tort work, and it reflects a chambers at ease with proceedings in either language of the courts. The criminal side of the practice is characterised by a close attention to procedural fairness, from the prosecution's duty to make witnesses available to the defence to the appellate court's power to correct a sentence, so that the firm's advocacy is directed as much at the integrity of the process by which guilt and punishment are determined as at the primary facts themselves.