(xiii) sale proceeds paid to Appellant and not forwarded to the Company. [31] In short, the admitted facts prove that Appellant in his position as the Assistant Supervisor at the Production Department made use of the Company’s employees from the main store and sub store to July 4, 2023 22 move the aluminium materials out of the Company’s premise after it was cut into two by placing it together with the unwanted or discarded aluminium materials at the recycling bay. Thereafter he got it transported out of the Company’s premise and delivered it to a recycling factory. He sold it to the recycling factory and kept the proceeds. [32] Finally, the Learned Sessions Judge found that for purposes of proving the charges, it did not matter whether the Appellant disposed aluminium that were rejected, discarded or unwanted or new aluminium materials that was yet to be used. PRINCIPLES OF APPELLATE INTERVENTION [33] In Herchun Singh & Ors v. PP [1969] 1 LNS 52, in respect of credibility of witnesses in criminal appeals, it was held by the Federal Court as follows :- “…This view of the trial Judge as to the credibility of the witness must be given proper weight and consideration. An appellate Court should be slow in disturbing such finding of fact arrived at by the Judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding...” [34] Whereas in Lai Kim Hon & Ors v. PP [1980] 1 LNS 197 in respect of findings by a trial judge in a criminal trial, it was held by the Federal Court as follows: - July 4, 2023 23 “…The principle of law governing appeals in criminal cases on questions of fact is well established, in that the Appeal Court will not interfere unless the balance of evidence is grossly against the conviction especially upon a finding of a specific fact involving the evaluation of the evidence of a witness founded on the credibility of such witness. In the instant case the learned trial judge very carefully analysed all the available evidence before him and made specific findings of fact founded upon that which he believed to be the truth. He also drew certain inferences from facts specifically found. In this respect we may form our independent view but we should only do so where the fact upon which the inference was drawn was either unwarranted or manifestly against the weight of evidence. That was not the case here. In considering the appeal before us we gave very careful consideration to submissions made by Mr. Manjit Singh, counsel for the first appellant, and Encik Radzi, counsel for second, third and fourth appellants. In our judgment there was no merit in the argument and we were in full agreement with the findings of the learned trial judge. We therefore dismissed the appeal against conviction...” [emphasis added] [35] Whereas in Mohd Johi bin Said & Anor v. PP [2005] 1 CLJ 389, in respect of the approach to be adopted in a criminal appeal, the Court of Appeal held as follows: - July 4, 2023 24 “…Unlike civil appeals, where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case the duty of the court is to consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe. See, Mohammad Husain v. Emperor AIR [1945] Nag 441; Zahari bin Yeop Baai v. PP [1977] 1 LNS 162; [1980] 1 MLJ 160. That question, on the present facts, must receive a negative response...” [emphasis added] [36] Appellant in the present Appeal has raised several grounds of appeal attacking the Learned Sessions Judge’s decision. I shall deal with each of the grounds below. [37] The 7 Appeals were heard together and this ground of judgement is in respect of all seven appeals. GROUND NO. 1 [38] Learned counsel for the Appellant submits that prosecution needs to prove 3 elements in a charge under Section 381 Penal Code and one of these element is theft as defined in Section 378 of the Penal Code. [39] According to learned counsel for the Appellant, prosecution has failed to prove the aluminium materials were dishonestly moved from the employer without the consent of the employer. July 4, 2023 25 [40] He contends that the aluminium materials were moved with the consent of the employer and there is no dishonesty on the part of the Appellant. [41] In making his submission, learned counsel for the Appellant contends that the Learned Sessions Judge has failed to consider that the sale transaction of the aluminium materials between PW8 and the Appellant was in the course of the Appellant discharging his duties to dispose the discarded, unwanted or old aluminium materials for recycling. [42] Appellant contends that these aluminium materials were discarded, unwanted or old ones and is no longer needed by the Company and the Company had instructed him to dispose these materials. As such, Appellant was only carrying out the Company’s instruction by selling these aluminium materials to Kilang Hup Huat Scrap Centre for recycling and therefore is no element of dishonesty on his part. [43] The learned Sessions Judge found the aluminium materials which is subject matter of the charges were disposed by the Appellant to PW8’s factory. [44] He also found that Appellant had engaged PW4 to provide transportation of the aluminium materials to PW8’s factory by using the lorry bearing registration number JFY 8535 entering through the back-entrance gate which will be opened by the Appellant himself. He further found that each time, the same lorry came to transport the aluminium materials. July 4, 2023 26 [45] This practice was not the usual Company’s modus on how the discarded or unwanted aluminium materials disposed for recycling. [46] The learned Sessions Judge found from PW3 and PW10’s evidence that the Company will only dispose aluminium materials once in every 2 months when there is sufficient quantity placed at the recycling bay. He further found, it is PW10 who attends to disposing of these discarded aluminium materials for recycling upon being notified by the Appellant when there is sufficient aluminium materials for recycling. PW10 will then contact one Ah Xiang from Syarikat Ee Fatt and Ah Xiang who normally bring different sizes lorry that is bigger than PW4’s lorry to collect the aluminium materials. PW10 also testified that he has been dealing with Ah Xiang for more than 5 years and never dealt with anyone else to dispose the unwanted, discarded or rejected aluminium materials and continues to deal with Ah Xiang for recycling of these materials. [47] The Company’s evidence on how the discarded or unwanted aluminium materials is disposed materially differs from how the Appellant disposed these materials to PW8. [48] In addition, according to the testimony of PW3, the aluminium which was placed outside the factory at the recycling bay were not rejected ones but there was new one’s type 31318 and 31905. These new ones were ordered by the Appellant to be cut into two and left at the recycling bay for collection by the lorry driven by PW4 coming from the back-entrance gate which was opened by the Appellant. July 4, 2023 27 [49] PW3 also testified that it is the Appellant who instructed the lorry to enter the factory through the back-entrance gate to collect these aluminium materials and the gate will only be opened by the Appellant. [50] PW4, the proprietor of Syarikat Save N Care Enterprise as evidenced by exhibit P5 is involved in transportation business. PW4 testified that his business owns a lorry with registration number JFY 8535 as evidenced by Exhibit P7. PW4 further testified that Appellant engaged his services to transport the aluminium materials from Syarikat Vitally Sdn. Bhd. to PW8’s recycling factory, Kilang Hup Huat Scrapp Centre in Batu Pahat. [51] PW4 further testified the Appellant used his services from February, 2018 until the month of February, 2019 and was paid by the Appellant RM250.00 for each trip to PW8’s factory. According to PW4, Appellant asked him to issue receipts in favour of the Company, Syarikat Vitally Sdn. Bhd. (Exhibit P6 A to S). PW4 also confirmed that he never dealt with anybody else from Syarikat Vitally Sdn. Bhd. apart from the Appellant. [52] PW4 also testified that Appellant directed him to collect the aluminium materials from the Company by entering through the back-entrance gate which will be opened by the Appellant himself. According to PW4, upon entering the factory premise, his lorry will be parked near the bay for recycled materials and the Company’s foreign workers will load the aluminium materials onto his lorry. He will then drive out using the back entrance of the factory and deliver July 4, 2023 28 it to Kilang Hup Huat Scrap Centre at Minyak Beku, Batu Pahat on the next day. [53] At PW8’s recycling factory, PW4 will wait for the aluminium materials to be unloaded and to be weighed. Thereafter he will WhatsApp to the Appellant the paper on which the weight of these materials is recorded. [54] PW8, one of the proprietors of Kilang Hup Huat Scrap Centre testified that he dealt with the Appellant from the period February, 2018 to February, 2019. According to PW8, Appellant represented to him that the Company, Syarikat Vitally is a partnership owned by him together with others and is involved in the business of aluminium products. PW8 further said that the Appellant told him that he had unwanted aluminium materials to be sold and asked for his quotation. [55] PW8 also testified that the Appellant agreed to his quote and the aluminium that was sold by the Appellant is around 10 feet long and wrapped with plastic or paper. There were also aluminium materials in small cut sizes. A transaction slip which shows the number of deliveries made by PW4 to PW8’s factory with the lorry registration number JFY 8535 was produced as exhibit P10. [56] Purchase Bills were issued for the purchases of these aluminium materials by PW8’s factory (Exhibit P9A-R). Some were issued in favour of the Appellant’s name and in some it was just stated as cash. PW8 also testified that the Appellant did not want the said July 4, 2023 29 Purchase Bills to be issued in the name of the Company to avoid paying tax for the sales proceed. [57] Lastly, PW8 also said that some payments were made to the Appellants via cheque as evidenced by Exhibit P12 A-K. [58] I am of the considered view that the learned Sessions Judge had arrived at the correct conclusion that the Company’s evidence on how the unwanted, rejected or discarded aluminium materials is disposed materially differs from how the Appellant disposed these aluminium materials to PW8 based on the totality of evidence. [59] As such, the Appellant’s contention that he was dealing in these aluminium materials with the consent from the Company or PW10 in the course of his duties as the Company’s employee to dispose these materials is not true and was rightly rejected by the learned Sessions Judge. [60] Based on the evidence adduced by the prosecution, I find that the learned Sessions Judge had correctly found that Appellant had dishonestly moved the aluminium materials from the factory, got it transported to a recycling factory with the intention of disposing it and benefiting from the same, without the consent from the Company. The evidence adduced by the prosecution supports the findings made by the learned Sessions Judge. [61] Furthermore, Appellant failed to produce any evidence of consent from PW10 or from the Company authorising him to make July 4, 2023 30 arrangement to dispose these aluminium materials as contended by him. [62] Evidence shows that Appellant had acted single handed in making the arrangement to dispose the aluminium materials for recycling without the Company’s knowledge and consent. [63] This is further corroborated by the Purchase Bills (Exhibit P9 A-R) issued by PW8’s recycling factory not in favour of the Company but in favour of the Appellant or just stated as cash. [64] The payments for disposing these items was also received solely by the Appellant as testified by PW8 and evidenced by P12 (A-K) , was kept by him and never forwarded to the Company. [65] As such, I find the learned Sessions Judge had correctly found that the Appellant had moved these aluminium materials from the Company’s premise with the intention of taking it dishonestly without the consent of the Company [66] In the premise, I find no merit in in this ground of appeal. GROUND NO. 2 [67] Next, Appellant raises the ground that his counsel being incompetent during the trial at the Sessions Court. [68] Learned Counsel for the Appellant in the High Court submits that the Appellant’s counsel at the Sessions Court was incompetent July 4, 2023 31 when he failed to cross examine one of the prosecution witnesses i.e. PW10, to put the Defence case during the prosecution stage and to call any witness during the Defence stage. [69] According to learned counsel for the Appellant in the High Court, Appellant had intended to call one Min Tun, an employee of the Company who is a Myanmar national but had returned to his home country and Ah Xiang, the person who PW10 normally deals with in respect of the aluminium materials for recycling. However, the Appellant’s wishes was not considered at all by his counsel in the Sessions Court. [70] Appellant also submits that his counsel in the Sessions Court failed to put to PW10 that Appellant sold the recycled aluminium materials on PW10’s instruction and also failed to cross examine PW10 on the cheques issued by Kilang Hup Huat Scrap Centre for the sale of aluminium materials for recycling by the Accused. [71] In support of his submission, learned counsel for Appellant in the High Court relies in Federal Court’s decision in Yahya Hussein Mohsen AbdulRab v PP [2021] CLJ 414 wherein Her Ladyship Tengku Maimun Tuan Mat, the Chief Justice of Malaysia held as follows :- “[43] At this juncture, it is safe to say that it is not unheard of (at least conceptually) for courts to set aside convictions by finding that there was an unfair trial on the ground that counsel was flagrantly incompetent such that effectively, there was no right to counsel. In other July 4, 2023 32 words, based on a series of decided cases, where the conduct of the counsel in the trial process gives rise to a miscarriage of justice, it is incumbent upon the court to set aside the conviction. [44] Taking heed from high authorities, the test in all cases when considering whether there was a breach of fair trial as a result of incompetent counsel is to ask the question whether the incompetency was flagrant, such that it caused or gave rise to a miscarriage of justice. As explained by McHugh J in TKWJ (supra): A test such as “flagrant incompetent”, while a convenient label may show that a miscarriage of justice has occurred in a particular case, is unhelpful in determining whether there has been a miscarriage of justice within the terms of s. 6(1) of the Criminal Appeal Act. Whether there has been a miscarriage of justice is the ultimate issue that the court must decide. (emphasis added) Thus, the focus of the inquiry by the court is not on the advocacy skills or performance of trial counsel, rather it is the acts or omissions themselves as they impact on the fairness of the trial and whether the result constitute a miscarriage of justice. July 4, 2023 33 [45] In this regard, those of us in the legal profession must recognise that there is a large influx of members of the Bar. Some are obviously more renowned than others for various reasons such as advanced experience and general access to information and network. There will always be the case where an accused person is dissatisfied with the standard of advocacy of his counsel. However, where counsel fails to abide by certain standards or does something another lawyer would have done differently, the accused or litigant's recourse is to the disciplinary or complaints mechanism established by law - or perhaps write a bad review. He is not otherwise entitled to use subjective or perceived notions of incompetency as a reason to complain about his conviction. [46] Be that as it may, in extreme cases, assessed objectively, where counsel has acted far below the accepted standard such that his flagrant incompetency jeopardises the accused person’s right to a fair trial, the overall purpose of art. 5(1) of the Federal Constitution - which is to deprive life or personal liberty only according to law - would be rendered illusory. As such, in those circumstances, the just thing to do would be to set aside the conviction. [47] At this point, what remains to be addressed is our reasons for agreeing with the Court of Appeal to the extent that the appellant’s counsel was flagrantly July 4, 2023 34 incompetent such that the conviction ought to have been set aside and our reasons for departing from the decision of the Court of Appeal on the retrial. [48] On an objective assessment of the additional evidence, we found that the Court of Appeal was correct to hold that the appellant's counsel was flagrantly incompetent occasioning in a miscarriage of justice to the appellant based on the following. [49] Firstly, the appellant would only be addressing the court as to his defence during the defence’s case. During the defence’s case, the appellant revealed for the first time the fact of Mickey and the entire transaction involving him. The JC found that the appellant’s narrative was an afterthought invented to support his testimony during the defence’s case as this was never put in cross-examination during the prosecution’s case. At the prosecution’s case, it was the duty of his counsel to effectively cross-examine the prosecution’s witnesses, which his counsel failed to do. The overall impression created in the mind of the JC arose as a result of counsel's failure to cross-examine the prosecution’s witnesses as he should and to lead evidence of the defence on this fact. [50] Secondly, and following from the first, the appellant’s counsel refused generally to consider the July 4, 2023 35 appellant’s narrative and instead chose to mount another defence for him, namely, the discrepancy in the weight of the drugs. The learned JC correctly found that the discrepancy in itself is not a sufficient ground to cast reasonable doubt on the prosecution’s case. The appellant’s counsel avoided advancing the appellant’s actual narrative which would have stood a better chance of exonerating him. [51] Thirdly, and further on the point of exonerating evidence, the appellant was the only witness who was called. In the appellant’s evidence, he denied having knowledge of the dangerous drugs and to support that assertion, he further posited the defence that Mickey packed his bag for him. The JC disbelieved this for the questionable reason that the appellant’s wife should have logically packed the bag for him. The learned JC would have perhaps arrived at a different conclusion if there was evidence before him on the fact that Mickey was not just some random stranger but was known to the appellant because Mickey was the appellant’s wife, DW2’s brother-in-law. To this effect, DW2 made her way to the court in Tawau to testify but the appellant’s counsel refused to put her on the stand. [52] Fourthly, taking DW1’s additional evidence at face value as supplemented by DW3, the trial counsel barely met with the appellant (only once in prison and once more briefly in court). The appellant’s counsel made no July 4, 2023 36 submissions at the close of the prosecution’s case and unfortunately, had passed away such that he could not be present for the decision at the end of defence’s case. [53] As stated by the Court of Appeal, it does not matter whether the appellant's defence was a weak or a strong one. The crucial point here is that the appellant, accused of a capital crime, should have had his day in court to posit the truth as to the events leading to the charge. The appellant was in essence, actively denied the right to advance his own case by his own counsel. His right to a fair trial had thus been violated.” [72] Whereas learned Deputy Public Prosecutor in replying to the Appellant’s submission, relies in the Court of Appeal’s decision in Mohd Jobi Ullah v PP [2022] 9 CLJ 37 wherein it was decided as follows:- “[57] Counsel for the appellant submitted before us that the appellant’s previous counsel, who handled the trial, was flagrantly incompetent which resulted in the appellant being deprived of a fair trial. The reasons for this contention were as follows: