Trial counsel's flagrant incompetence violated the appellant's constitutionally guaranteed right to a fair trial, resulting in a quashed conviction.

Tengku Maimun Tuan Mat:

Introduction

[1] This appeal is an apt example of the crucial role played by defence counsel in a criminal trial and how their flagrant incompetence might jeopardise the accuseds right to a fair trial - a right guaranteed by art 5(1) of the Federal Constitution and which comprises a fundamental tenet of the rule of law.

The Background Facts

[2] The appellant, a Yemeni, was charged in the High Court in Sabah and Sarawak at Tawau for the following offence:

"THE CHARGE:

That you on the 25th day of July 2013 at about 11.00 am. at the arrival hall of Tawau Airport in the District of Tawau, in the State of Sabah did on your own behalf, traffic in a dangerous drug, to wit 1,800.28 grams of Methamphetamine and that you have thereby committed an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 punishable under s 39B(2) of the same Act.

PUNISHMENT:

Shall be punished on conviction with death."

The Prosecution's Case

[3] On 25 July 2013, the appellant travelled by flight from Kuala Lumpur to Tawau, Sabah. The immigration officer who was on duty, one Amri bin Awang ('PW1), had, in the usual course of his duties inspected the appellants passport and noted that his social visit pass had expired.

[4] PW1 referred the matter to his superior and at that time, was informed by the appellant that he (the appellant) had with him some luggage (P2) on the floor next to the luggage carousel. The facts disclosed that P2 was the only remaining luggage at the carousel. PW1 then sought the assistance of two other customs personnel namely Ombra @ Omrah bin Saibillah ('PW2) and Suhaina binti Hussein ('PW6) to inspect and scan P2.

[5] Upon scanning, PW2 noticed a suspicious image in P2 and accordingly instructed the appellant to open the bag. This the appellant did with a key he had in his possession. Once opened, PW2 observed a transparent plastic package in the inner compartment of the bag.

[6] Mario Domingo ('PW10) from the Preventive Section of the Customs Office arrived at the scene and instructed the appellant to open P2. The appellant again, did so using the key he had. PW10 similarly noticed the transparent plastic package containing a crystalline substance. Using a test kit, PW10 conducted an initial drug test which revealed the identity of the substance as Methamphetamine. This led to the arrest of the appellant.

[7] Upon analysis by the chemist, Biling ak Peter Raig ('PW9'), the crystalline substance was confirmed to be Methamphetamine weighing 1800.82 grams, the subject matter of the charge.

Findings Of The Trial Judge At The End Of The Prosecutions Case

[8] At the close of the prosecutions case, the learned Judicial Commissioner ('JC') found that the prosecution had proved the following ingredients to make out a prima facie case against the appellant, namely:

(i) That the appellant had possession of the said drugs;

(ii) That the drugs were dangerous drugs, namely, Methamphetamine; and

(iii) That the appellant had trafficked the said drug.

[9] On the elements of possession which are twofold, that is to say, the physical element and the mental element, the learned JC determined that the physical element of custody and control had been made out because P2 belonged to the appellant and because the appellant claimed P2 to be his. On the mental element, the learned JC invoked the presumption under s 37(d) of the Dangerous Drugs Act 1952 (' DDA ') to find that the appellant had knowledge of the drugs in P2.

[10] As regards the nature and quantity of the drugs, the learned JC accepted the evidence of PW9 on the usual process undertaken when conducting an analysis of the drugs. His Lordship dealt with the issue raised by the defence, which was the only line of defence raised in the trial, namely on the discrepancy in the weight of the drugs as testified by PW9 and PW10.

[11] It was the evidence of PW10 that the weight of the drugs was 4 kilogram while PW9 testified that the weight was 1800.28 gram. The learned JC noted that the w