Gopal Sri Ram FCJ:-

[1] The appellant was convicted by the High Court of the offence of murder and sentenced to death. His appeal to the Court of Appeal was dismissed. He has now appealed to us.

[2] The substance of the prosecution's case is that the appellant murdered one Zuriyati Othman ("the deceased") on 9 August 2002 between 11am and 12noon. The offence is said to have taken place at No. 101, Blok A, Kolej Kediaman Meranti, UITM, Seksyen 2, Shah Alam, in the district of Petaling, Selangor Darul Ehsan. The evidence led in support of this case is as follows. The appellant and the deceased had had a relationship which became estranged. On the day in question, the appellant called at the deceased's flat. Later, the deceased's sister (PW10) heard a cry from the deceased. It came from the deceased's room. PW10 could not enter the room as it was locked from inside. She looked for the spare key, found it, opened the door and entered the room. She found only two persons there: the deceased and the appellant. The deceased was lying on her bed. She had been stabbed several times. She succumbed to her wounds. The appellant also had injuries. A large knife (referred to as "a Rambo knife") was found in the room. It was identified as the probable weapon used to inflict the wounds upon the deceased. Based on these pieces of evidence the prosecution argued that it was the appellant who stabbed the deceased and that he did so with the intention of causing her death. The appellant's case before the High Court was that it was some third person who had stabbed the deceased and caused her death. This defence was never put to the prosecution witnesses. The trial judge rejected it as an afterthought. Before the Court of Appeal and before us, the appellant advanced the argument that he had not had a fair trial by reason of the incompetence of counsel assigned to conduct the defence. Questions essential to present the defence to the prosecution were never put to the latter's witnesses. In particular, the defence of a third person having been the assailant was not suggested to PW10. There had simply been no attempt to conduct a searching cross examination of the main prosecution witnesses. All this when taken together demonstrates that counsel who conducted the defence was incompetent in consequence of which the appellant had been deprived of his right to a fair trial. So much for the submissions.

[3] In our view, the argument advanced by the appellant gives rise to two separate issues. First, whether the incompetence of counsel is a legitimate ground upon which an appellate court may intervene to set aside a conviction. Second, if the first question is resolved affirmatively, then, whether the present appeal is one in which such intervention is warranted. Take the first point. The starting point for this is art. 5(1) of the Federal Constitution which guarantees that neither life nor personal liberty may be deprived save in accordance with law. In accordance with the principles of interpretation discussed and accepted by this court in Badan Peguam Malaysia v. Kerajaan Malaysia [2008] 1 CLJ 521, the expressions "life" and "personal liberty" must be interpreted generously and given a wide meaning. In Lee Kwan Woh v. Public Prosecutor [2009] 5 CLJ 631;, this court held that the fundamental liberties expressed in the Constitution must be read in a prismatic fashion to discover the rights submerged in the wider concepts expressly guaranteed. This court also affirmed as accurate the following statement of the law by Edgar Joseph Jr J (as he then was) in Public Prosecutor v. Choo Chuan Wang [1992] 2 CLJ 1242; [1992] 3 CLJ (Rep) 329:-

Article 5(1) of our Constitution does imply in favour of an accused person the right to a fair hearing within a reasonable time by an impartial Court established by law. It follows that if an accused person can establish a breach of this right then, in the words of Sandhawalia, CJ in Madheshwardhari Singh v. The Stat