that the principal offence was committed as a direct consequence of the appellant's act of abetment. Failure of the trial judge to make distinct findings on abetment [25] With respect, a critical and fundamental error in the trial judge's approach was his failure to make distinct findings regarding the elements of abetment against the appellant. A careful reading of the trial judge's grounds of judgment reveals that he erroneously proceeded on the premise that both Muhammad Sufi and the appellant were charged with the same offence of criminal breach of trust under section 409 of the Penal Code. This flawed approach resulted in a misdirection in law. [26] In his analysis, the trial judge assessed the evidence in respect of the charges against the appellant together with his analysis of the charges against Muhammad Sufi, as if both were charged with the same principal offence. This approach fundamentally misapprehended the nature of the charges against the appellant which were for abetment under section 109 of the Penal Code, not for the principal offence under section 409. … [28] The trial judge's failure to make distinct findings on the specific mode of abetment, whether by instigation, command, conspiracy, or intentional aid, constituted a serious misdirection. This misdirection deprived the appellant of the opportunity to adequately address the precise allegations against him during his defence. The lack of specificity in the findings further hindered the appellant's ability to challenge the prosecution's case effectively. … [30] In the present appeal, the trial judge not only failed to make specific findings on abetment but also conflated the analysis of the appellant's case with that of Muhammad Sufi. By treating both as if they were charged with the same offence, the trial judge fundamentally misconceived the legal principles applicable to abetment. [31] This erroneous approach was deeply flawed. The elements of abetment under section 109 read with section 107 of the Penal Code are legally distinct from the elements of the principal offence under section 409. The failure to make separate findings on the elements of abetment resulted in a miscarriage of justice. By not delineating which specific acts of abetment the appellant was found to have committed, the trial judge deprived the appellant of his right to a fair trial. This omission created uncertainty in the findings and undermined the appellant's ability to present a proper defence. Misdirection in the trial judge's approach [32] A thorough examination of the trial judge's grounds of judgment reveals multiple serious misdirections that necessitate appellate intervention. These misdirections are not minor irregularities but instead go to the very core of the case, affecting the fairness of the proceedings and the validity of the conviction. [33] First, as previously highlighted, the trial judge erroneously treated the appellant and Muhammad Sufi as though they were charged with the same offence of criminal breach of trust under section 409 of the Penal Code. This fundamental misunderstanding permeated the entire judgment. The trial judge failed to distinguish between the elements required to establish the principal offence and those necessary to prove abetment. As a result, he erroneously applied the same legal analysis to both accused thereby distorting the proper legal basis applicable to the appellant's charges. [34] Second, the trial judge failed to determine which specific mode of abetment under section 107 of the Penal Code was supported by the evidence, whether it was by instigation, command, conspiracy, or intentional aid. Each mode of abetment contains distinct legal elements that must be established beyond reasonable doubt. The failure to make such a determination constituted a serious misdirection as it deprived the appellant of the opportunity to effectively address the allegations against him and mount a proper defence. [35] Third, the trial judge failed to conduct a proper evaluation of the defence evidence. He summarily dismissed much of the defence's case as "bare denial" without providing a reasoned analysis of its merits. … [37] The misdirections in the present case are so fundamental that they cannot be cured by invoking section 422 of the Criminal Procedure Code. Section 422 of the Criminal Procedure Code empowers an appellate court to uphold a conviction despite the presence of errors, omissions, irregularities, etc. if the court is satisfied that no substantial miscarriage of justice has occurred. However, in the present appeal I found the errors committed by the learned trial judge were so severe that they vitiated the entire proceedings rendering the conviction unsafe. … [39] In the present case, the misdirections committed by the trial judge were so serious that they resulted in a substantial miscarriage of justice. [40] On the contrary, as will be further elaborated, the prosecution's case suffered from significant deficiencies in proving the essential elements of abetment. Therefore, the exceptional circumstances that would justify upholding a conviction despite legal misdirections, as outlined in Tunde Apatira (supra.) are not present in the present appeal. Respectfully, I find the cumulative effect of the trial judge's errors renders the conviction unsafe and unsustainable in law. Failure to prove the ingredients of abetment [41] The prosecution's case against the appellant for abetment under section 109 read with section 409 of the Penal Code suffered from significant deficiencies. These deficiencies were particularly evident in the prosecution's failure to establish the essential elements of abetment as defined under section 107 of the Penal Code. [42] The necessary elements to constitute abetment as defined under section 107 of the Penal Code are well established. Traditionally, the three elements are instigation, conspiracy and intentionally aiding. … [44] In June 2012, section 107 of the Penal Code was amended to include the element of "command" under the new paragraph (aa). In my considered view, the concept of abetment through the act of commanding another individual to commit the principal offense was established to address circumstances in which persons, particularly those in positions of authority or leadership, instigate, direct, or order others to engage in criminal conduct. This provision is intended to ensure accountability for individuals who orchestrate or facilitate criminal activities through subordinates, thereby preventing masterminds or leaders of criminal organizations from evading legal responsibility solely on the basis that they did not personally execute the unlawful acts but instead exercised their authority to compel others to do so. Abetment by instigation [45] In the present appeal, the evidence of PW26 directly contradicted the prosecution's claim that the appellant instigated Muhammad Sufi to commit criminal breach of trust. PW26 testified unequivocally that the appellant never issued direct instructions concerning payment applications or project implementation. PW26 further stated that the implementation of the project was overseen by Muhammad Sufi through the Transformation Unit with minimal involvement from the appellant. This testimony did not support the prosecution's theory of instigation and cast serious doubt on the appellant's alleged role in prompting or encouraging the commission of the offence. Abetment by command [46] To establish abetment by command under section 107(aa) of the Penal Code, the prosecution was required to prove that the accused held a position of authority and used that authority to direct or instruct the principal offender to commit the offence. [47] In the present case, although the appellant occupied a superior hierarchical position to Muhammad Sufi within FELDA'S organizational structure, the prosecution failed to prove that the appellant commanded Muhammad Sufi to commit criminal breach of trust. The testimony of PW26 was particularly significant in this regard. PW26 confirmed under cross-examination that the appellant never issued direct instructions to Muhammad Sufi concerning the specific payments or transactions that formed the basis of the criminal breach of trust charges. Instead, PW26 testified that project implementation was largely handled autonomously by Muhammad Sufi through the Transformation Unit. This testimony directly negated any supposition that the appellant exercised authoritative control over the commission of the alleged offence. [48] Furthermore, the evidence demonstrated that the payments in question were processed through FELDA's established financial procedures involving multiple levels of approval and oversight procedures. There was no evidence to demonstrate any possibility that the payments resulted from direct commands issued by the appellant to Muhammad Sufi. Abetment by conspiracy [49] To establish abetment by conspiracy under section 107(b) of the Penal Code, the prosecution bore the burden of proving an agreement or common intention between the appellant and Muhammad Sufi to commit criminal breach of trust. In Datuk Haji Harun Bin Haji Idris (supra.), the court held that conspiracy requires proof of a combination and agreement between two or more individuals to engage in an illegal act or to achieve an illegal purpose through unlawful means. [50] In the present appeal, the prosecution failed to adduce any direct evidence of an agreement or common intention between the appellant and Muhammad Sufi to misappropriate FELDA's funds. No witness testified to the existence of any conversation, communication or meeting where such an agreement was reached. The mere fact that both the appellant and Muhammad Sufi were directors of the relevant companies did not, in itself, establish a conspiracy. The prosecution's reliance on their positions as directors was speculative and did not satisfy the legal threshold required to prove abetment by conspiracy beyond reasonable doubt. Abetment by intentional aid [51] To establish abetment by intentional aid under section 107(c) of the Penal Code, the prosecution was required to prove that the appellant knowingly and deliberately assisted Muhammad Sufi in committing criminal breach of trust. In Faguna Kanta Nath v. State of Assam AIR 1959 SC 673; [1959] SC 673, the court held that mere presence or awareness of an offence is insufficient to establish abetment by intentional aid. The accused must have actively participated in facilitating the commission of the offence. [52] The prosecution's case primarily relied on the appellant's signing of the TTSA and DBCA agreements. However, the evidence demonstrated that these agreements were reviewed and vetted by FELDA's legal department, as confirmed by PW48, and by external legal counsel, PW46 and PW47. PW48 testified that the agreements were subjected to proper legal scrutiny before execution. This evidence indicates that the appellant signed the agreements in reliance on professional legal advice rather than with any intention to aid Muhammad Sufi in committing criminal breach of trust. The prosecution failed to disprove this reasonable explanation. [53] Furthermore, the prosecution failed to prove that the appellant was aware of any intention on Muhammad Sufi's part to commit criminal breach of trust and that he deliberately assisted in its commission. In Loh Liang Gun (supra.), the Court of Appeal emphasized that for abetment by intentional aid, the prosecution must establish that the accused had knowledge of the principal offender's intent to commit the offence and took deliberate actions to facilitate it. [54] In the present appeal, the evidence suggested that the appellant acted within his authority and in good faith to implement Board-approved projects. PW26 testified that the appellant consistently sought legal advice and adhered to established procedures concerning the Sturgeon Project. This testimony contradicted the prosecution's assertion that the appellant knowingly and intentionally aided Muhammad Sufi in committing criminal breach of trust. The evidence, instead, indicated that the appellant acted in accordance with his official duties and in reliance on legal and procedural guidance. [55] Additionally, for abetment under section 107 of the Penal Code to be established, the prosecution was required to prove that the principal offence was committed as a direct consequence of the alleged abetment. In the present case, the evidence did not demonstrate a causal link between the appellant's actions and Muhammad Sufi's alleged commission of criminal breach of trust. The payments in question were processed through established approval procedures within FELDA, involving multiple levels of oversight procedures. This evidence suggested that the payments were part of routine business operations and were not the result of any abetment by the appellant. [56] In light of these significant evidentiary deficiencies, I found the prosecution failed to establish beyond reasonable doubt that the appellant had committed abetment under section 109 read with section 409 of the Penal Code. The trial judge's failure to properly analyse and consider these essential elements of abetment constituted a serious misdirection in law. Failure to consider the defence evidence [57] A further fundamental flaw in the trial judge's approach was his failure to properly assess and consider the defence evidence. In my considered view, the evidence presented by the defence raised reasonable doubt as to the appellant's guilt. However, the trial judge appeared to summarily dismiss much of the defence's case as a bare denial without engaging in a proper analysis. This constituted a serious misdirection in law. [58] The appellant's primary defence was that he acted in good faith and within the scope of his authority as the Director-General of FELDA. He asserted that his actions were in furtherance of the Sturgeon Project which had been approved in principle by the FELDA Board. He contended that the Board's approval, as recorded in Minutes No. 304 (Special) dated 04.07.2013, authorised him to proceed with the project. Based on this approval, he argued that he was empowered to enter into the necessary agreements and facilitate the required payments. [59] Several defence witnesses, including DW6, a former Director-General of FELDA who had attended the relevant Board meeting, testified that comprehensive presentations were made regarding the Sturgeon Project. These witnesses further testified that the Board had granted its approval for the project. This testimony directly contradicted the prosecution's assertion that the project had not received proper Board approval. [60] Despite the significance of this testimony, the learned trial judge dismissed it without conducting a proper evaluation. The failure to assess the credibility and weight of independent witness testimony is a serious legal error. In Dato' Yap Peng (supra.) the Federal Court held that evidence provided by independent witnesses who have no personal interest in the case must be carefully examined and given due consideration. The trial judge's failure to properly assess the testimony of DW6 and other defence witnesses amounted to a serious misdirection that materially prejudiced the appellant's case. [61] Additionally, the appellant adduced evidence demonstrating that the FELDA Board was regularly updated on the progress of the Sturgeon Project during subsequent Board meetings. Importantly, no objections were raised by the Board in these meetings. This fact was corroborated by PW41 who confirmed that the Board had been kept informed. This evidence supported the appellant's contention that the Board was aware of, and by reasonable deduction, implicitly approved the continued implementation of the Sturgeon Project. [62] Furthermore, the appellant presented evidence that the Sturgeon Project was undertaken in good faith as a strategic initiative to generate alternative revenue streams for FELDA. This need for alternative income arose after the listing of FGV which had significantly diminished FELDA's financial resources. PW41 confirmed that FELDA encountered substantial financial difficulties following the listing of FGV. This testimony supported the appellant's rationale for pursuing the Sturgeon Project as a means of financial sustainability for FELDA. [63] In Periasamy Sinnappan v. Pendakwa Raya [1996] 3 CLJ 187 CA; [1996] 1 MLRA 277; [1996] 2 MLJ 557; [1996] 2 AMR 2511 (refd), the Court of Appeal held that a person who acts under an honest belief, even if such belief is ultimately mistaken, cannot be found guilty of criminal breach of trust. The evidence presented by the appellant, if properly considered, suggested that he honestly believed he was acting within his lawful authority and in the best interests of FELDA. This belief, if accepted, would negate the element of dishonest intention required to establish the principal offence of criminal breach of trust. [64] The learned trial judge's failure to adequately consider this defence evidence and to determine whether it raised a reasonable doubt as to the appellant's guilt constituted a serious misdirection. Failure to produce crucial minutes of Board meeting and audio recordings [65] A fundamental weakness in the prosecution's case was its failure to produce critical evidence relating to FELDA Board meetings. This failure was particularly significant concerning the audio recordings of Board Meeting No. 304 (Special) held on 04.07.2013, a meeting central to the case. PW27, who served as the Board Secretary, testified under cross-examination that audio recordings of this meeting had been made. This testimony confirmed the existence of recorded evidence that could have clarified the true discussions and decisions made by the Board. [66] However, when pressed to produce these recordings, PW27 stated that they had been deleted for "security reasons" This explanation lacked credibility given the fundamental importance of Board meeting records in corporate governance. The maintenance of accurate and complete records is especially crucial for an organization of FELDA's significance. The unexplained deletion of such key evidence raised serious doubts about the integrity of the prosecution's case. [67] In Dato' Yap Peng (supra.), the Federal Court held that where a tape recording of a meeting exists and the prosecution asserts that the minutes accurately reflect its contents but fails to produce the recording, an adverse inference should be drawn under section 114(g) of the Evidence Act 1950. The Court emphasized that the failure to produce primary evidence, particularly when its existence is established, undermines the prosecution's case and supports the defence's version of events. [68] This principle was particularly applicable in the present case due to the existence of two conflicting sets of minutes for Board Meeting No. 304 (Special). The prosecution relied on document marked as Exhibit P100 as the official record of the meeting. In contrast, the defence presented document marked as Exhibit D372 which was the original draft minutes prepared by PW27. A comparison of these two documents revealed significant discrepancies, particularly regarding the conditions attached to the approval of the Sturgeon Project. [69] PW42 admitted to making alterations to the minutes without clear authorization. Meanwhile, PW27's explanation for these alterations was vague and inconsistent. Their testimony established that the original draft minutes (Exhibit D372) materially differed from the final version (Exhibit P100). The most crucial differences concerned the conditions imposed by the Board when approving the Sturgeon Project. These discrepancies raised substantial doubt as to the accuracy and reliability of the prosecution's version of events. [70] The prosecution's failure to produce the audio recordings, which would have definitively clarified the discussions and decisions made during the Board meeting, constituted a severe evidentiary gap. Applying the principle established in Dato' Yap Peng (supra), an adverse inference should be drawn against the prosecution. The absence of the recordings supported the appellant's contention that the Board had, in fact, granted approval for the Sturgeon Project. The deleted recordings could have confirmed whether the Board had imposed conditions on the project or granted it unqualified approval. [71] Where crucial evidence exists that could definitively establish the prosecution's case but is not produced, the accused must be given the benefit of the doubt. (See: Public Prosecutor v. Mohd Azam bin Basiron & Anor [2011] 3 MLJ 741 CA; [2010] 2 MLRA 487; [2010] 9 CLJ 1 (folld)). This principle applies squarely to the present appeal. The prosecution's inability to produce the audio recording of the Board meeting deprived the court of key evidence that could have settled the conflicting versions presented at trial. As such, the benefit of the doubt must be given to the appellant. [72] The prosecution's reliance on altered minutes further weakened the reliability of its case. PW42 admitted to making unauthorized alterations to the minutes. PW27 failed to provide a coherent explanation for these changes. These factors raised serious concerns about the credibility of the documentary evidence that formed the foundation of the prosecution's case. The inconsistencies in the minutes of meeting coupled with the unexplained deletion of the audio recordings created a significant evidentiary gap that severely weakened the prosecution's argument. Corporate governance and authority The prosecution's case was fundamentally flawed due to its misunderstanding of FELDA's corporate structure and governance framework. The evidence provided by PW4 clearly established that the highest authority within FELDA rested with its Board of Directors. Decision-making power over FELDA'S assets and financial commitments was vested in the Board, not in any individual officer including the appellant or Muhammad Sufi. This critical distinction was overlooked by the prosecution. [75] The testimony of PW44 further reinforced this principle. PW44 confirmed that any investment exceeding RM100 million required express Board approval. Investments below this threshold fell within the purview of the Investment Committee, which was subsequently replaced by FIC. However, despite this delegation of authority, the Investment Committee and FIC remained subject to Board oversight and were accountable for their financial decisions. This governance structure directly contradicted the prosecution's theory that individual officers, such as the appellant and Muhammad Sufi, had the unilateral authority to commit FELDA to substantial financial obligations without Board approval. [76] The evidence further demonstrated that the payments in question were processed in accordance with FELDA'S established financial procedures. These payments underwent multiple levels of scrutiny, approval and oversight procedures. PW44 explicitly confirmed that the payments followed the requisite internal procedures and were duly reported to the Board. This evidence indicated that the payments were part of FELDA's routine business operations rather than an orchestrated scheme to misappropriate funds. The prosecution failed to establish any deviation from the established financial protocols. [77] Additionally, subsequent Board meeting minutes, marked as document Exhibit P352, showed that when updates on the Sturgeon Project were presented, no objections were raised by the Board. This was corroborated by the testimony of PW41, PW44 and other prosecution witnesses, all of whom confirmed that the Board had been kept informed of the project's progress. This documentary evidence directly undermined the prosecution's assertion that the Sturgeon Project lacked proper Board approval or oversight. The failure of the prosecution to reconcile this contradiction further weakened its case against the appellant. [78] The evidence in the present appeal demonstrated that losses associated with the Sturgeon Project only materialized after its premature termination by FELDA's new management. By that time, the appellant had already left FELDA. This strongly suggested that the losses arose due to subsequent business decisions rather than any alleged criminal misconduct by the appellant or Muhammad Sufi. The prosecution failed to establish any direct causal link between the appellant's actions and the financial losses incurred. Financial losses resulting from business decisions, without evidence of dishonest intent, do not constitute criminal liability. [79] In light of these findings, the prosecution's failure to correctly interpret FELDA's corporate governance structure, its inability to establish unauthorized financial commitments and its reliance on speculative assertions regarding financial losses rendered its case untenable. Dishonest intention [80] A fundamental element of the principal offence of criminal breach of trust is the presence of dishonest intention. It is well established that the mens rea requirement under section 24 of the Penal Code, as encapsulated in the term "dishonestly", necessitates proof of an intention to cause either wrongful gain or wrongful loss. The prosecution bore the burden of proving beyond reasonable doubt that the appellant acted with such intent as distinguished from proof of actual wrongful loss or gain. [81] However, the prosecution failed to discharge this burden. The evidence did not establish that the appellant acted with dishonest intent. Instead, the evidence indicated that the appellant's actions were directed toward securing FELDA'S financial stability following the listing of FGV. This corporate restructuring had significantly diminished FELDA's revenue streams necessitating alternative investment strategies to sustain its operations. PW41 confirmed that FELDA faced financial difficulties post-listing. This testimony directly supported the appellant's explanation that the Sturgeon Project was pursued as a means of generating alternative revenue for [82] The testimony of PW26 further reinforced this position. PW26 stated that feasibility studies conducted prior to the project's approval projected that the Sturgeon Project would be profitable. Additionally, PW41 conceded under cross-examination that the project was a good project. This acknowledgment from the prosecution's own witnesses contradicted the assertion that the appellant had pursued the project dishonestly or with the intent to cause wrongful loss to FELDA. The losses associated with the Sturgeon Project only materialized after FELDA's new management made the decision to prematurely terminate the project. At that time, the appellant had already left FELDA, further severing any causal link between his actions and the financial losses incurred. [83] The principle established in Periasamy (supra.) is directly applicable to the present case. In that case, the Court of Appeal held that a person acting under an honest belief, even if that belief was ultimately mistaken, cannot be guilty of criminal breach of trust. The evidence adduced at trial strongly suggested that the appellant acted under the genuine belief that he was operating within the scope of his authority and in furtherance of FELDA's best interests. This belief, whether correct or not, negated the element of dishonest intention required to establish the principal offence of criminal breach of trust. [84] In light of this evidence, I hold the considered view that the prosecution has failed to establish beyond reasonable doubt that the appellant had acted dishonestly. The learned trial judge's failure to properly analyze and consider this crucial element of the offence constituted a serious misdirection in law. Defects in the charges [85] The charges framed against the appellant did not specify the precise manner in which the alleged abetment under section 107 of the Penal Code was committed. (See: Datuk Tiah Thee Kian v. Public Prosecutor [2002] 1 MLJ 585; [2001] 4 MLRH 453; [2002] 2 CLJ 21 (refd); [2001] AMEJ 0055). While the law does not impose an absolute requirement to specify the exact mode of abetment in the charge, the omission became critical in the context of the present appeal. The learned trial judge failed to make clear and definitive findings on which mode of abetment, whether by instigation, command, conspiracy or intentional aid, was proven by the evidence. This failure created ambiguity and prejudiced the appellant's ability to effectively prepare his defence. [86] Additionally, a fundamental inconsistency existed between the principal charge against Muhammad Sufi and the abetment charges against the appellant. The charge against Muhammad Sufi specifically referenced the misappropriation of FELDA Caviartive's funds, whereas the abetment charges against the appellant referred to FELDA's funds. This distinction was not minor, as FELDA and FELDA Caviartive were legally distinct entities with separate financial structures. This inconsistency had the potential to mislead the appellant in preparing his defence as he was not clearly informed of the precise financial transactions that formed the basis of the allegations against him. [87] The legal principles articulated in Ravindran Ramasamy v. Public Prosecutor [2015] 6 MLJ 509 FC; [2015] 3 MLRA 112; [2015] 3 CLJ 421 (refd) are directly applicable to the present appeal. In that case, the Federal Court held that sections 156 and 422 of the Criminal Procedure Code cannot be invoked to cure a defective charge if the accused was misled to the extent that a failure of justice occurred. The defects in the charges against the appellant, when considered alongside the learned trial judge's misdirections, resulted in procedural unfairness. These deficiencies cumulatively led to a failure of justice that could not be remedied by the application of curative provisions under the Criminal Procedure Code. [88] Given these material defects in the charges, coupled with the learned trial judge's failure to properly address the inconsistencies, the appellant was deprived of a fair trial. The errors were not mere irregularities but went to the root of the charge proffered against the appellant. Application of Tunde Apatira & Ors v. PP [89] In Tunde Apatira (supra.), the Federal Court laid down the general principle regarding appellate intervention in cases involving judicial misdirection. The Apex Court remarked as follows: "As a general rule this court will, in the normal course of events, quash a conviction where there has been a misdirection Exceptionally, a conviction will be upheld despite a misdirection where this court is satisfied that a reasonable tribunal would have convicted the accused on the available evidence on a proper direction." [90] The Federal Court in Tunde Apatira (supra.) upheld the convictions despite the misdirection because the evidence against the appellants was entirely overwhelming. His Lordship the Honourable Gopal Sri Ram JCA (later FCJ) said: "Having scrutinised the record with care, we are satisfied that this is an appropriate case for the application of the proviso. The evidence, both direct and circumstantial, against the appellants is entirely overwhelming. A court applying s. 37(da) in the manner required by Muhammed bin Hassan would have nevertheless convicted the appellants on the available evidence." [91] The present appeal, however is fundamentally distinguishable from Tunde Apatira (supra.) for several reasons. First, in Tunde Apatira (supra.), the misdirection pertained to a specific point of law concerning the interpretation of a statutory provision. In contrast, in the present appeal the misdirections by the trial judge were far more serious. They went to the very core of the learned trial judge's understanding of the nature of the charges against the appellant. The learned trial judge conflated the elements of the principal offence under section 409 of the Penal Code with those of abetment under section 109, thereby fundamentally misconceiving the legal framework applicable to the appellant's case. [92] Second, in Tunde Apatira (supra), the Federal Court upheld the convictions because the evidence against the appellants was entirely overwhelming. The Court was satisfied that a properly directed tribunal would have inevitably reached the same conclusion. By contrast, in the present appeal the prosecution's evidence did not establish the appellant's guilt beyond reasonable doubt. As previously discussed, the prosecution's case suffered from substantial deficiencies in proving the essential elements of abetment under section 107 of the Penal Code. The evidence did not demonstrate that the appellant had instigated, conspired, commanded or intentionally aided the commission of the principal offence. The misdirections by the learned trial judge in assessing these elements were not minor or technical errors but went to the very foundation of the conviction. [93] Third, in Tunde Apatira (supra), the Federal Court was satisfied that the totality of the evidence reasonably supports the conclusion that the offence was committed even in the absence of the incorrect legal presumption applied by the trial judge. In the present appeal, the totality of the evidence does not support the conclusion that the appellant committed abetment under section 109 of the Penal Code. The prosecution failed to establish any of the modes of abetment defined in section 107. Furthermore, there was substantial evidence supporting the appellant's defence that he acted in good faith and within the scope of his authority. [94] Therefore, the exceptional circumstances that justified upholding a conviction despite a misdirection in Tunde Apatira (supra) are not present in this case. The general principle stated in Tunde Apatira (supra) that a conviction should be quashed where there has been a misdirection, must be applied. This principle was reaffirmed in Alcontara (supra), where the Federal Court held that a conviction must be set aside when misdirections fundamentally affect the fairness of the trial. Given the nature and extent of the misdirections in the present case, the appellant's conviction cannot stand and ought to be quashed to rectify the miscarriage of justice. Conclusion [95] For the reasons set out above, I find that the prosecution failed to establish its case beyond reasonable doubt. The prosecution was unable to prove the essential elements of abetment as required under section 107 of the Penal Code. This failure, when considered alongside the learned trial judge's multiple misdirections and the significant evidentiary deficiencies, rendered the conviction fundamentally unsafe and unsustainable in law. [96] Given these circumstances, the appeal against both conviction and sentence are allowed. The conviction and sentence imposed by the trial court are hereby set aside. The appellant is accordingly acquitted and discharged of both charges.” Nas Undang-Undang Berkaitan Persubahatan [45] Di dalam kes PP v. Datuk Haji Harun b Haji Idris & Ors [1977] 1 MLJ, Abdoolcader di m/s 196 menerangkan mengenai seksyen 107 Kanun Keseksaan seperti yang berikut: "Instigation consists of acts which amount to active suggestion or support or stimulation for the commission of the main act or offence. Advice can also become the commission of an offence (Ragunath Das v Emperor). Abetment by conspiracy consists in the combination and agreement of persons to do some illegal act or to affect some illegal purpose by illegal means. Proof of conspiracy need not be direct proof but can be a matter of inference deducted from certain criminal acts of the accused done in pursuant of an apparent criminal purpose in common between them (Emperor v Abdul Hamid). Abetment by aiding takes place when a person by the commission of an act intends to facilitate and does in fact facilitate the commission of an act (Faguna Kanta Nath v State of Assam). Where there is show a positive act of assistance voluntarily done by a person with a knowledge of the circumstances constituting an offence, the abettor is guilty of abetment by aiding (National Coal Board v Gamble)." Ringkasan Hujahan Perayu / Pendakwa raya