Iun Chung Peng v Pendakwa Raya (S-05(M)-108-03/2022)

3404.2 grams of Methamphetamine under Section 39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) and punishable under s. 39(B)(2) of the same Act. [2] At the conclusion of the trial, the learned trial judge found that the prosecution had proven its case against the appellant beyond reasonable doubt. A guilty verdict was pronounced and conviction was entered against the appellant on the preferred charge of trafficking. The appellant was sentenced to death by hanging. The Charge “That you, on the 24th day of June 2019, at about 3.45 pm, located at Tawau Airport police station, in the District of Tawau, in the State of Sabah, did on your own behalf traffic in a dangerous drug to wit 3404.2 grams of Methamphetamine, and you have thereby committed an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234) and punishable under section 39B(2) of the same Act.” The Prosecution’s case [3] The prosecution’s narrative of the case as gathered and found by the learned trial judge in his grounds of decision can be summarized as follows: “(i) On 24th June 2019, PW2, an officer attached to the Narcotics Department, IPD Tawau, acting on a tip-off, assembled a team of 10 other policemen, and proceeded to the Tawau airport. They arrived at the airport at about 1.45 pm.

(ii) On arrival, the team took up different positions. PW2, SM Amran and Kpl Anuar were in the front area of the arrival gate. Insp Shafiq and 5 others were in the arrival hall area, while D/Kpl Nasruddin was by the immigration counter on the upper floor.

(iii) As the accused arrived, PW2 received a description of the accused’s appearance, and the information was relayed to the other team members. In a short while, the accused was at the baggage collection area, and he went to the toilet.

(iv) After he came out of the toilet in about 5 minutes, he took a silver luggage from the baggage corousel, and proceeded to the arrival gate.

At that time, at about 3.30 pm, in front of the arrival gate, PW2 approached the accused who was pulling a silver luggage and had a colorful backpack as well as a clutch bag. These items were seized (see seizure list marked as exhibit P23 and its appendix as P23A). Photographs of the seized bags and their contents were collectively marked as exhibit P27(1-28).

(vi) PW2 introduced himself as a police officer. PW2 testified that the accused was “terkejut” and his voice “terketar-ketar”. PW2 also testified that he asked the accused for identification and the accused’s hand was “menggigil” or shivering when he unzipped the clutch bag to hand over his identity card to PW2.

(vii) PW2 told the accused why he was arrested and examined the identity card which bore the name of the accused and his national registration identity card no. 870405- 52-7257.

(viii) PW2 instructed the accused to take the luggage to the police station at the airport. When they arrived there at about 3.45pm, PW2 instructed the accused to place the silver luggage, backpack and clutch bag on the floor while he administered the caution under section 37B(1)(b) of the DDA 1952 in Bahasa Malaysia.

(ix) He asked the accused if the silver luggage had “barang-barang salah”. The accused kept silent while nodding his head in an alarmed and frightened manner.

PW2 then instructed the accused to open the silver luggage (P10) which had a tag “TWU 0807936937 FLT No. AK5748” which later marked as P10(a).

(xi) The accused opened the luggage using the numerical code 114. Inside were a green paper bag with the word “PARKSON”, two items of ladies’ wear and 5 plastic packages on which the words “Big Bang Grilled Seaweed” were inscribed. These 5 plastic packages were marked as P3A-E.

(xii) In each of those 5 plastic packages, there were red-yellow plastic packages on which the words “Chinese Tea Gift” were written and they were marked as P3A(i) to P3E(i) in the course of trial. They in turn contained 1 transparent package each containing crystalline substances suspected to be methamphetamine. They were marked as P3A(i)(a)(aa) to P3E(i)(a)(aa).

(xiii) PW2 then examined the clutch bag and it contained among other items, the travel itinerary (P15) and boarding pass (P16) in the name of the accused for the flight to Tawau by AK5748 on 24 June 2019. There was also a luggage tag sticker (P16A) on the boarding pass the serial number TWU 0807936937, one Maybank debit card No. 4283322056861519, the accused’s driving licence and a set of keys. PW2 also examined the backpack but there were no illegal items in there.

(xiv) The chemist, PW1 confirmed that the content of the packages was a Methamphetamine weight 3404.2 grams.” The findings of the learned trial judge at the end of the prosecution’s case [4] From his assessment of the evidence, the learned trial judge found actual possession as having been established by the prosecution. This conclusion was predicated on the appellant’s demonstrable custody and control over the impugned drugs, commencing from the moment he retrieved the silver luggage P10 from the conveyor belt at Tawau Airport and continued moving P10 with him as he advanced towards the exit, until he was apprehended by the raiding officer, PW2 (Insp. Syed Muhammad Iqbal Bin Syed Yassin). [5] Based on the evidentiary record, the learned trial judge further drew the inference that the appellant possessed knowledge of the presence of the drugs in P10. This conclusion was supported by the appellant’s affirmative gesture in nodding his head in response to the question, “Apakah yang kamu bawa dalam beg silver ini dan adakah terdapat barang-barang salah?”. Such conduct was consistent with his subsequent action of unlocking P10 using the numerical code 114, thereby reinforcing the inference of conscious awareness and control. [6] After carefully examining the evidence adduced by the prosecution’s witness on maximum evaluation, the learned trial judge found that they are credible and reliable proving each essential ingredients of the offence of trafficking and ruled that a prima facie case has been made out by the prosecution. The Defence [7] The appellant elected to testify in his own defence, without calling any additional witnesses. He essentially denied any knowledge of the drugs found in P10, maintaining throughout that he was merely an innocent carrier, an assertion that formed the core of his defence. [8] The defence advanced by the appellant, as set out by the learned trial judge, is reproduced below: “[67] The Accused had made the acquaintance of one Ah Meng at a pub in Miri through an unnamed person he treated as his younger brother. The accused had known Ah Meng for about 6 months before his arrest. They were drinking friends and had beer at a coffee shop and at the pub. [68] When they were drinking in Miri, sometime in June 2019, Ah Meng asked the accused if he travelled to Kuala Lumpur. The accused answered in the affirmative. The accused also told Ah Meng he would be going to Tawau on 24 June. Ah Meng then told the accused he would look for him in Kula Lumpur if he happened to be going there. The accused agreed. [69] The accused had checked into Corona Inn in Kuala Lumpur on 22 June 2019 (See NOP, Q & A 271). It was there he collected P10 from Ah Meng in Kuala Lumpur (See NOP, Q & A 244 and 279-280). In his examination-in-chief, he explained why he did so: "My friend asked me a favour to carry a luggage to Tawau. In Kuala Lumpur my friend asked me to carry a luggage and send to his friend in Tawau." See NOP, Q & A 236 [70] The accused checked out the next day to move into Damen Suite at Subang Jaya near Sunway Lagoon. He said he did so because he wanted to go to Sunway Lagoon (See NOP, Q & A 273-277). [71] He denied he had switched lodgings because he knew there were drugs in P10 and wanted to avoid getting caught (See NOP, Q & A 283).” [9] The learned trial judge noted that the circumstances surrounding the appellant’s arrest were not in dispute, although the appellant denied having exhibited any signs of fear or apprehension in his conduct. [10] The appellant described his arrest at Tawau Airport in the following words: ",,,,,,,,when I arrived at Tawau airport, after I took my luggage, and when I almost reached the exit door of the airport, I was detained by a group of people. They informed me they are policemen. They asked me to go to the right side near to the taxi counter and then asked me to open the luggage and take my clothes and saw some seaweed packages and then they asked me to close back my luggage. They asked me to go to the police station in the airport." [see NOP, page 135, lines 2-10]. [11] Further, the appellant narrated in his own words the incident happened at Tawau Airport Police Station as follows: "They asked me to reopen my luggage and take out all the clothes in the luggage. They saw some packages, they asked me to take the packages one by one and open them slowly. They asked me to take one and inside it there was another plastic, a Chinese tea package. When I opened the Chinese tea package, there was a clear plastic package inside and I saw there were drugs. Then they asked me to put it down and continue with the second package. When I opened the second package, there was also a Chinese tea package inside. When I opened this Chinese tea package, there was another clear plastic package inside, the process continues with the 3rd, 4 th and 5th packages." [see NOP, page 136, lines 3-14]. The findings of the learned trial judge at the conclusion of the defence case [12] The learned trial judge found that the appellant’s defence of being an innocent carrier to be incredulous and implausible, concluding that it failed to raise any reasonable doubt in the prosecution’s case. The judge’s findings are reproduced below: “[76] In the instant case, there was good reason for the accused to be suspicious but at best, he chose to be wilfully blind. He did not know Ah Meng that well. They were, to use a colloquial term that perhaps most appropriately describes their relationship, only drinking buddies. In the words of the accused: "We are normal friends but we always drink beer together." (See NOP, Q & A 256). [77] The accused had only known Ah Meng for about 6 months and did not even know his full name. Although the accused later professed to provide Ah Meng's real name as William Ting Boon Ming, which information he said he obtained from an unnamed family member who got it from an unnamed friend (See NOP, Q & A 249 and 251), it is evident that he did not provide that full name to the police and it surfaced for the first time in his examination-in-chief. [78] Notably, the full name was not put to the IO, PW4. It does lie in the mouth of the accused to complain of less than exemplary investigation or that PW4 failed to follow up with the Dang Wangi police station, when the details provided were insufficient. [79] There is thus no merit in the suggestion that the accused should be acquitted on the basis that PW4 had failed to investigate the existence of Ah Meng.” [13] The learned trial judge also found the appellant’s suggestion that the investigating officer (PW4) had failed to investigate the existence of Ah Meng to be devoid of merit. This was primarily because the appellant’s claim that the police possessed a photograph of Ah Meng was never put to PW4 during cross-examination. Moreover, the appellant failed to disclose the identity of his younger brother who was allegedly Ah Meng’s close associate. [14] The learned trial judge observed that although the appellant had testified to making three separate trips to Tawau including the final trip on 24.6.2019 during which he was arrested with the specific purpose of locating his relatives, namely his maternal grandfather and cousin sister, none of these individuals were called to testify in his defence. This omission, in the judge’s view, undermined the credibility of the appellant’s account and cast doubt on the veracity of his claim. [15] Further, there were no details provided by the appellant such as the telephone number or the name of the person to whom P10 was to be delivered. The appellant merely said that P10 was to be sent to Ah Meng's friend in Tawau. In this respect, the learned trial judge stated as follows: [83] There were red flags but the accused was wilfully blind to them. He was allegedly given the numerical code by Ah Meng to open P10 but did not open the luggage over the space of the 2 days he had the luggage. He had both "right” and "opportunity" to check the contents but did not do so - see Hoh Bon Tong (supra) - although Ah Meng had purportedly told him that it only contained "women's things." (See NOP Q & A 253). In law, the accused, on account of his wilful blindness, is taken to have known of the drugs in P10. See PP v Herlina Purnama Sari (2016) 1 LNS 1855. [84] Bearing in mind the suspicious circumstances, this court is bound to take heed of the following passage in Jorge Crespo Gomez (supra): "[36] As the circumstances are such as to arouse suspicion, it is incumbent on the part of the appellant to make the necessary inquiries to satisfy himself as to the genuineness of the transaction. There was (sic) concurrent findings by the learned JC and the Court of Appeal that the only inference that can be deduced from the suspicious circumstances which was not queried by the appellant, is that the appellant knew what he was carrying in the metal cylinders were drugs. The failure to make inquiries from Solomon as to why the need to personally sent the items via Malaysia en route to Thailand, the appellant is deemed to know and that the appellant was guilty of wilful blindness. The appellant had all the opportunity to enquire and to check the bag, but did not do so as he was shutting his eyes to the obvious (see Hoh Bon Tong v. PP [2010] 15 CLJ 240). In the course of the law he is taken to know." [16] Regarding the alleged 2–3 minutes gap in the CCTV footage, the appellant contended that this lapse cast doubt on PW2’s testimony describing the appellant as "cemas," "berpeluh," "pucat" and "menggigil ketakutan" at the time of his arrest near the exit of Tawau Airport. However, the prosecution maintained that the recording nonetheless captured the appellant from the moment he retrieved P10 until he transported it to the airport police station. The learned trial judge concluded that there was compelling and undisputed proof that the appellant had custody and control of P10. Furthermore, the fact that he knew the numerical code to unlock P10 supported an inference that he had knowledge of its contents. [17] The learned trial judge was inclined to accept PW2’s testimony as credible, particularly his account that the appellant nodded in response when asked whether there were any “barang-barang salah” in P10. In contrast, the appellant’s assertion that he could not recall whether he had nodded was deemed implausible and insufficient to raise a reasonable doubt in the prosecution’s case. [18] In summation, the learned trial judge was satisfied that the prosecution had adduced cogent and credible evidence establishing both the identity and the weight of the drugs in question. The Appellant’s physical possession of the said drugs was sufficient to invoke the statutory presumption of trafficking pursuant to section 37(da)(xvi) of DDA. Applying the legal standard articulated in PP v Yuvaraj [1968] 1 LNS 116, the learned trial judge held that the appellant had failed to discharge the evidential burden of rebutting the said presumption on a balance of probabilities. [19] At the conclusion of the defence case and having considered the totality of the evidence as required by s. 182A of the Criminal procedure Code, the learned trial judge found that the prosecution has proven its case against the appellant beyond reasonable doubt. [20] On the issue of sentencing, the learned trial judge noted that neither the appellant nor his counsel tendered any further evidence or submissions pertaining to assistance rendered to any enforcement agency in the disruption of drug trafficking activities, as contemplated under section 39B(2A) of DDA. In the absence of such mitigating circumstances, the court proceeded to impose the death sentence upon the appellant, namely, that he be hanged by the neck until he is dead. The Appeal [21] There are several issues raised by the appellant in his Petition of Appeal which included, inter alia, the following:

The learned trial judge had erred in law and fact in failing to appreciate that the Prosecution had completely failed to lead any form of credible evidence on trafficking and had not established a prima facie case against the appellant.

(ii) Learned trial judge erred in fact and/or in law when he took into account presumption in arriving at his decision although the respondent elected to establish possession by direct evidence only.

(iii) Learned trial judge should only focussed on actual possession and s. 2 of the DDA and had he done so, he should have come to the conclusion that the appellant was in fact an innocence carrier and had no reason or cause for suspicion to investigate or to check the contents of the bag in issue.

(iv) As the prosecution was relying on possession and it therefore is incumbent upon the prosecution, as a burden being on them during the prosecution’s stage, to put forward compelling and credible evidence and in fact the best evidence, that the Appellant was not in passive possession of the bag and this was a failure on the part of the learned trial judge where he fell in error of law and/or fact as he did not consider nor appreciate that the Prosecution had failed in this respect as inter alia there was;-

no finger print,

(ii) DNA evidence,

(iii) evidence that the Appellant had come into contact with the contents of the bag prior to his arrest, and

(iv) to establish knowledge without the aid of a presumption, being the position taken by the Prosecution.

The learned trial judge convicted the Appellant inter alia relying on body language per se, which is pure guess work and purely suspicion and purely assumptions as the nodding of the head or any other gesture of the Appellant cannot be equated to an admission of guilt as multiple factors may be playing in the mind of the Appellant at the point of his arrest and soon thereafter and body language per se should not a ground of a reasoning leading to a conviction as it is ambivalent and such nodding or similar behaviour could well be due to so many factors as well.

(vi) The learned trial judge erred in fact and/or in law when he failed to appreciate that evidence of admission cannot be admitted unless there was a voir dire which was not conducted by the Prosecution and as such evidence should had been excluded. The nodding and behaviour was subsequent questions put forward and such questions should have been reduced in writing and signed by the appellant soon after the arrest but such admissions in writing were never put forward in evidence but the Prosecution had avoided that approach but had taken the approach in error of law to adduce such inadmissible evidence.

(vii) The learned trial judge erred in fact and/or in law when he failed to appreciate that the investigation was shoddy as a specific name had been given and that name was “Ah Meng” and it cannot be discounted or ignored by the investigating officer and it was not as if it was a figment of the appellant’s imagination but an issue that should be investigated, which could be investigated.

(viii) The learned trial judge fell in error of law as he took the position that the appellant should have called in his defence his relatives to give evidence on his behalf and this is error of law which is fatal to a conviction.

(ix) The CCTV recordings were incomplete and this itself had affected the narrative of the Prosecution’s evidence and whatever the circumstances, such narrative was so closely linked in place and time prior to his arrest and should have led the learned trial judge to invoke s. 114 (g) Evidence Act 1950 in favour of the appellant.

The appellant was represented by Counsel who was not adequately prepared or experienced to handle the trial and this had seriously and gravely affected the Appellant’s case at trial and his defence as can be seen from the Records of Appeal. Our findings [22] For the purpose of coherent analysis, we have consolidated the above multiple grounds as advanced by the appellant under the following headings, namely:

Erroneous finding of a prima facie case;

(ii) Failure to properly evaluate and appreciate the defence case; and

(iii) The alleged incompetence of counsel. Erroneous finding of a prima facie case [23] The learned trial judge found that the prosecution had successfully established all essential elements of the offence. Specifically, the crystalline substance seized was confirmed to be methamphetamine with a net weight of 3,404.2 grams; the appellant was in actual possession of the said drugs; and, pursuant to the statutory presumption, the appellant was deemed to be trafficking in the dangerous drugs on the date, time, and location as specified in the charge. [24] On the learned trial judge’s findings that the appellant had custody and control of the impugned drugs in the silver luggage P10, we find no appealable error committed by him based on the overwhelming evidence showing that the appellant was caught in actual possession of the drugs inside P10 he carried. [25] The said silver luggage P10 was registered under the appellant’s name matched with the luggage tag i.e. P10(a) stated in the baggage list for flight AK5748 bound for Tawau on 24.6.2019. Most importantly, the appellant was the one who pulled P10 after collecting it from the conveyor belt to the exit gate of Tawau Airport before being approached by PW2. He opened P10 upon the instruction of PW2 with the numerical code 114. [26] The learned trial judge had referred to the correct authorities to determine the element of knowledge which is very often a matter of inference and it varies from case to case. He cited the Federal Court’s case of PP v Abdul Rahman Akif [2007] 4 CLJ 337; and Ghasem Hozouri Hassan v. PP [2018] 6 CLJ 133, where it was held that the Court can resort to draw inference from the surrounding facts and circumstances of the particular case to prove the element of knowledge in order to establish possession. [27] The facts and evidence adduced at the trial established that the appellant retrieved, handled, and wheeled P10, which remained continuously in his possession until he unlocked it using the numerical code 114. Upon opening, 5 “Big Bang Grilled Seaweed” packages containing crystalline substances were discovered within. The appellant’s knowledge of the specific code required to access P10 gives rise to a reasonable inference that he was aware of its contents. Trafficking [28] We are also of the view that the learned trial judge was not erred in invoking the presumption of trafficking under s. 37(da)(xvi) of DDA because the quantity of the drugs in the present case was 3404.2 grams more than the minimum weight of 50 grams of methamphetamine. [29] The learned trial judge made a finding of fact that the drugs in question were initially packed in transparent plastic packages, which were then placed inside red-and-yellow plastic wrappers bearing the label “Chinese Tea Gift.” These, in turn, were concealed within 5 larger plastic packages inscribed with the words “Big Bang Grilled Seaweed.” We note that the drugs were ingeniously layered within these packages in a manner specifically designed to evade detection by enforcement authorities. [30] Thus, we find no error made by the learned trial judge in his finding that the prosecution had established a prima facie case against the appellant for which rebuttal evidence would be necessary for him to earn an acquittal. Failure to properly evaluate and appreciate the defence case [31] The learned trial judge had carefully considered the defence put forward by the appellant as reflected in his grounds of decision. It is worth repeating that the investigation into Ah Meng's involvement was impeded by the insufficient information provided to the police. The learned trial judge said as follows: “[61] As for the accused's contention that the police should have properly carried out investigations on the existence of Ah Meng, it is to be noted that beyond what appears to be a common name or at the least, an incomplete name, and without an address, it cannot be said that such a person exists. Further, PW4 had sent a letter to the Immigration Department but unsurprisingly to no avail as there were insufficient details. [62] Although Tobechi Chinonso Madu v PP [2015) 1 LNS 57 concerned a case of presumed, as opposed to actual, possession, the Court of Appeal observed: "The mere fact that Ossy's name was mentioned during police investigation is not evidence that Ossy actually exists. How were the police to investigate the existence of this person when the appellant did not even give his full name and his residential address? The poor investigating officer may end up chasing a wild goose. We therefore found no merit in the appellant's argument that the police's failure to investigate the existence of Ossy must be held against the prosecution." [32] In dismissing the appellant’s defence of being an innocent carrier, the learned trial judge rightly found that the appellant had demonstrated wilful blindness. Despite having both the “right” and the “opportunity” to inspect the contents of the luggage (P10) over a span of two days, the appellant chose not to do so. Crucially, he was allegedly provided with a numerical code by one Ah Meng, which would have enabled him to verify the contents. His failure to act on this opportunity was not inadvertent but deliberate. [33] The court further noted that the appellant had only known Ah Meng for a brief period, and the intended recipient of the item was entirely unknown to him. These circumstances, taken together, ought to have raised reasonable suspicions in the mind of any prudent individual. The appellant’s conscious decision to remain ignorant, in the face of these red flags, amounted to wilful blindness. [34] The learned trial judge was entitled to reject the appellant’s defence. The factual matrix did not support a finding of innocence, but rather pointed to a calculated avoidance of knowledge, which is incompatible with the defence of an innocent carrier. [35] Thus, we find that the learned trial judge had given his utmost consideration of the defence case in coming to his findings. We had no reason to disturb the learned trial judge’s findings of facts on possession of the drugs by the appellant premised on his appreciation of the evidence before him during the prosecution and defence case. [36] With respect to the contention raised by learned counsel for the appellant that the learned trial judge erred by relying solely on the appellant’s body language in arriving at a conviction, we are unable to agree. Contrary to the appellant’s assertion, a careful reading of the grounds of decision reveals no finding wherein the learned trial judge concluded that the appellant’s conduct alone irresistibly pointed to guilt. The conviction was not premised on body language per se, but rather on the totality of the facts and evidence adduced in the case, as previously outlined. The learned trial judge’s reasoning was firmly anchored in the evidentiary matrix, and not on speculative or subjective impressions. [37] It is contended that the learned trial judge erred in law by suggesting that the appellant ought to have called his relatives to testify in support of his defence. However, upon a proper reading of the learned trial judge’s grounds of decision, it is evident that he was merely observing that the appellant was at liberty to call his relatives from Tawau to corroborate his account. This observation cannot be construed as imposing a legal burden on the appellant to prove his innocence. [38] Such a suggestion, if interpreted as shifting the burden of proof, would indeed be fatal to the conviction. However, in the present case, the learned trial judge did not predicate his findings of guilt on the absence of such testimony. The burden remained squarely on the prosecution throughout, and the learned trial judge’s remarks must be understood in the context of evaluating the credibility of the appellant’s defence, not as a requirement to adduce exculpatory evidence. Incompetency of counsel [39] Learned counsel for the appellant also submitted before us that the appellant was previously represented by counsel who was not adequately prepared or experienced to handle the trial in the High Court. It was contended that this inadequacy had a serious and prejudicial impact on the conduct and outcome of the appellant’s case. [40] In advancing the allegation of incompetence on the part of the counsel who represented the appellant at the trial below, learned counsel for the appellant merely directed the Court to the Records of Appeal. However, no specific particulars were provided to substantiate how the alleged lack of preparation and experience of previous counsel had materially affected the conduct of the trial or the defence advanced. [41] On this issue, it is instructive to refer to the Federal Court’s case of Shamim Reza Abdul Samad v PP [2009] 6 CLJ 93. The relevant excerpts are as follows: “[6] That, then, is the state of the authorities. In our considered judgment, the incompetence of counsel in the conduct of a defence in a criminal trial is a ground on which a conviction may be quashed provided that (i) such incompetence must be flagrant in the circumstances of the given case; and (ii) it must have deprived the accused of a fair trial thereby occasioning a miscarriage of justice. Nothing short will suffice. And in considering the question, an appellate court must have regard to the conduct of counsel as a whole and not merely to his or her failure in one or two departments. Further, in the ordinary way, a court whether at first instance or at the appellate state will of course have regard to its paramount function and duty to ensure that justice is done so that the incompetence of counsel will not factor into the equation. As the Federal Court said in Wong Lai Fatt v. Public Prosecutor [1973] 1 LNS 175:- The paramount function and duty of the courts is to see that justice is done in all cases. As stated by Lord Denning MR in Doyle v. Olby Ltd [1969] 2 QB 159, at p. 166:- We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side. [7] That brings us to the facts of the present case. The real complaint here is focused upon the point that the deceased was killed by some person other than the appellant. It was submitted for the appellant that the failure to put this to the witnesses for the prosecution was flagrant incompetence because it resulted in the trial judge declining to consider that line of defence altogether. With respect we cannot agree. The evidence makes it clear that no person other than the appellant was in the room at the material time. The room was locked from within. This necessitated PW10 to look for the spare key. When she entered, the only person in the room other than the deceased was the appellant himself. The possibility of a third person having entered the room is, on the facts, so far-fetched that a reasonable tribunal of fact would have rejected it as creating no reasonable doubt in its mind. Accordingly, the fact that the trial judge excluded that line of defence has occasioned no miscarriage of justice on the facts of this case. [8] Having regard to what we have said, we are satisfied that this is not an extreme case of incompetence on the part of counsel. Equally, we are satisfied that this is a case in which the appellant having been properly and deservedly convicted has sought to suggest flagrant incompetence on the part of counsel. Before concluding we must say that the trial could perhaps have been conducted with greater competence than that displayed by counsel who appeared for the appellant at his trial. But there was, on the material provided to us, no flagrant incompetence. In any event, no miscarriage of justice has been occasioned. The appeal is therefore dismissed. The conviction and sentence are affirmed.” [42] In the light of the above authority, it is well established that an allegation of incompetent legal representation must meet a high threshold. To succeed, the appellant must demonstrate that the incompetence of counsel was so flagrant, in the context of the case, that it deprived the appellant of a fair trial and resulted in a miscarriage of justice. [43] It is equally important to emphasise that the conduct of counsel must be assessed holistically. A finding of incompetence cannot rest merely on isolated lapses or deficiencies in one or two aspects of the trial. The Court must consider whether, taken as a whole, the representation fell below the standard expected of reasonably competent counsel. [44] Ultimately, even where allegations of incompetence are raised, the Court must remain guided by the overarching question of whether justice has been served. This requires a careful evaluation of the totality of the evidence adduced at trial. If the conviction is supported by credible and compelling evidence, the mere assertion of counsel’s inadequacy may not suffice to vitiate the proceedings. [45] In the present case, there is no legitimate basis for complaint, as the crux of the matter lies in the issue of possession of the impugned drugs found in P10. As previously noted, P10 was under the actual and exclusive possession of the appellant throughout, with no access afforded to any third party. The handling of the luggage was solely within the appellant’s control, a fact that was never disputed. [46] Given the strength of the evidentiary record, the learned trial judge cannot be said to have been plainly wrong in his findings. Indeed, the conclusion reached is one that would have been inevitable before any properly constituted tribunal, applying the same facts and legal principles. The consistency of such a finding underscores the robustness of the trial court’s reasoning and the absence of any miscarriage of justice. Conclusion [47] We find no error made by the learned trial judge in his findings of facts and came to a conclusion at the end of defence case that the prosecution had proven its case beyond a reasonable doubt, found the appellant guilty of a drug trafficking charge, and convicted him. The appellant had failed to cast a reasonable doubt as to his guilt. [48] In addition, we find that the appellant had failed to dislodge the legal presumption of factual nature, namely that he was a drug trafficker, on the balance of probabilities. [49] For the above reasons, we unanimously upheld the learned trial judge’s decision and dismissed the appellant’s appeal on conviction. [50] As regards to sentencing, upon hearing the parties on the proper sentence to be meted out in the light of Act 846, we are minded to commute the death sentence imposed by the learned trial judge to 30 years imprisonment with 12 strokes of whipping. The imprisonment term is to run from the date of arrest i.e. 24.6.2019. In the circumstances, we set aside the death penalty and substitute it with the above sentence. [51] The appeal on sentence is allowed to the above extent. Dated this: 16 September 2025 SGD ------------------------------------------ ALWI BIN HJ. ABDUL WAHAB JUDGE COURT OF APPEAL COUNSEL: For the Appellant /Accused: Dato Sri K. Rakhbir Singh, TETUAN RAKHBIR SINGH & CO For the Respondent/Prosecution: Deputy Public Prosecutor Shamala Jaganathan, JABATAN PEGUAM NEGARA