Kit & Associates (Kuala Lumpur)

On the court record

The firm's record illustrates the argument that the flagrant incompetence of trial counsel can breach the constitutional right to a fair trial, and the problem of simultaneous reliance on actual and presumed trafficking under sections 2 and 37(da) of the Dangerous Drugs Act 1952.

Kit & Associates (Kuala Lumpur) appears in the corpus as appellate counsel in dangerous-drugs prosecutions, acting for appellants before the Court of Appeal (Mahkamah Rayuan) in appeals against conviction and sentence.

The firm's reported work centres on charges of trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952, where appellants had been sentenced to life imprisonment and strokes of the rotan. A striking feature of one appeal is the argument that the flagrant incompetence of trial counsel had resulted in a breach of the appellant's fundamental constitutional right to a fair trial, a contention that puts the conduct of the defence at trial directly in issue on appeal. The appeal also engaged whether the trial judge had erred in finding the requisite mens rea and presumed possession under section 37(d), and whether the judge had wrongly found simultaneous actual and presumed trafficking under sections 2 and 37(da) of the Dangerous Drugs Act 1952, a doctrinal problem about whether the prosecution can rely at once on direct proof of trafficking and on the statutory presumption.

In a connected group of appeals, argued in Malay, the firm engaged the absence of knowledge of the drugs and their true nature, the defence of an innocent carrier (pembawa tidak bersalah), the defence of duress (ugutan) under section 94 of the Penal Code, which requires a threat that is imminent, persistent and extreme at the time of the offence, whether an Alcontara notice had been properly given, the doctrine of wilful blindness, and the presumption under seksyen 37(da).

The accused persons are referred to here by their procedural role. The firm's record is a focused criminal-appellate practice in capital drug matters, notable for advancing the incompetence of trial counsel as a fair-trial ground and for its close engagement with the interaction of actual proof and statutory presumption.