1 Haridass s/o Mohan (the “accused”) was charged with abetting by way of conspiracy with one Babu s/o Suppiah (“Babu” or the “co-accused”) to traffic in three bundles of drugs containing not less than 38.98 grams of diamorphine (“three bundles”), and in pursuance of that conspiracy, the accused took possession of the three bundles on 11 September 2014 at Blk 106 Commonwealth Crescent, Singapore.

2 Babu was charged in turn with abetting by way of conspiracy with the accused in the offence stated above. Mr Ramesh Tiwary (“Mr Tiwary”) represented the co-accused as his lead counsel throughout the trial. Mr Satwant Singh was the assisting counsel.

3 Babu was tried jointly with the accused until he (ie, Babu) pleaded guilty midway during the joint trial.

4 The accused had an unusually large number of changes of assigned counsel during his trial as can be seen from the table below and at certain periods of time, he was representing himself:

5 When the present counsel Mr Hassan and Ms Chitra (collectively also his “new counsel”) came on board to represent the accused, many allegations of inadequate legal assistance (“inadequate representation”) and complaints were raised against his previous lead counsel, Mr Johan, and assisting counsel, Mr Revi Shanker (collectively also his “previous counsel”), both of whom represented him from May 2017 to 12 July 2019. The accused alleged that his previous counsel’s failure to follow his instructions had essentially compromised his defence. Presumably on the advice of his new counsel, the accused wanted not only to recall various Prosecution witnesses for further cross-examination but also give further evidence-in-chief of certain matters not dealt with earlier.

6 It must be pointed out that when snippets of these allegations first surfaced, the accused’s cross-examination by Mr Tiwary had not been completed, his new counsel had not commenced re-examination of the accused and the case for his defence was far from being closed. As the accused’s new counsel had not completed taking full instructions from the accused and were not ready to deal with the accused’s allegations against his previous counsel, I proceeded to finish the main hearing first and have the defence close its case before dealing separately with these allegations.

7 On 12 July 2019, Mr Johan and Mr Revi Shanker discharged themselves from acting for the accused, whilst the accused was still being cross-examined by Mr Tiwary. At the discharge application, Mr Johan informed the Senior Assistant Registrar (“SAR”) of the following reasons for seeking a discharge: ¹

(a) When the accused was cross-examined by Mr Tiwary, he made certain allegations as to instructions which he purportedly gave to Mr Johan’s team but Mr Johan’s position was that they never received those instructions.

(b) On 1 July 2019, Mr Revi Shanker informed Mr Johan that when he was in Changi Prison interviewing another person, Mr Revi Shanker was informed of allegations that they were sabotaging the accused’s defence in cahoots with Mr Tiwary. Mr Johan could not see the accused as he was still on the witness stand but they could not accept these allegations.

(c) Mr Johan and his team simply could not continue to act for the accused as they were of the view that the relationship between solicitor and client was broken.

After hearing the parties, the SAR granted their application for discharge.

8 The present counsel, Mr Hassan and Ms Chitra, who were appointed much later on 30 September 2019, were not allowed permission to speak with the accused and take instructions from him because the accused was still in the midst of cross-examination by Mr Tiwary. The accused informed the court that there were a lot of things that he wished to inform his new counsel of. ² I told the accused that he could speak with and give instructions to his new counsel after his cross-examination was completed and his new counsel could then re-examine him. ³ This was to ensure that the accused’s cross-examination (including the cross-examination by the Deputy Public Prosecutor Mr Terence Chua Seng Leng (the “DPP”)) could continue unimpeded and uninterrupted.

9  Mr Tiwary continued with his cross-examination of the accused on 3 and 4 March 2021. The trial was part heard. Before the trial resumed, Babu succeeded in his fresh representations to the Prosecution to have his drug charge reduced from trafficking in not less than 38.98 grams of diamorphine to a substantially reduced amount of not less than 9.99 grams. Babu pleaded guilty before Ang Cheng Hock J on 9 April 2021 to a substantially reduced charge of trafficking in not less than 9.99 grams of diamorphine and was sentenced to 15 years’ imprisonment and 12 strokes of the cane. ⁴

10 When the trial resumed on 27 April 2021, continued cross-examination of the accused by Mr Tiwary (ie, on the basis that Babu was entirely not involved with the offence and that the accused was lying when he implicated Babu as the person who ordered the drugs) was no longer necessary as the co-accused, Babu, had been dealt with. The DPP then commenced his cross-examination of the accused. At the completion of the DPP’s cross-examination and before the accused’s re-examination, Mr Hassan asked for an adjournment of the trial to take instructions from the accused as this would be his first opportunity to do so since his appointment as counsel in September 2019, some 19 months earlier. ⁵

11 On 31 August 2021 when the trial resumed after it was again part-heard, Mr Hassan requested for all the documents (including the statement of facts) in relation to Babu’s plea of guilt to the reduced charge. The DPP acceded to the request. ⁶ The DPP indicated that he intended to call Babu later as a Prosecution witness. ⁷ Mr Hassan then commenced his re-examination of the accused. Presumably based on instructions from the accused first received by Mr Hassan only after completion of the accused’s cross-examination, an incident in the Supreme Court lock-up (“lock-up”) came to light during the accused’s re-examination where Mr Johan, Mr Revi Shanker, Mr Tiwary and their assisting counsel had a meeting with the accused in the lock-up. Certain disturbing evidence also surfaced. The accused testified as follows: ⁸

12 In the above extract, there is a reference to an outburst where the accused called Mr Tiwary a dishonest lawyer. This had happened some months earlier on 4 March 2021 during the accused’s cross-examination by Mr Tiwary when the accused (who had all along been giving oral evidence in the Tamil language) suddenly shouted at Mr Tiwary in English saying: “I am not blaming. You understand or not? … You came down below in the lock-up. You tell me. You take all the things [meaning the drugs]. And then you let Babu go off.” ⁹ This could be heard on the audio recording of the trial proceedings on 4 March 2021 just prior to the adjournment of the court for the day. The accused said that he had gotten upset and angry as the things that Mr Tiwary was saying and putting to the accused were untrue ¹⁰ . I note that Babu had since pleaded guilty to drug trafficking in conjunction with the accused in this case (see [9] above). Babu was therefore involved with the accused in trafficking of the drugs just as the accused had stated. Accordingly, what had been put to him by Mr Tiwary, ie, that the accused was lying about Babu’s involvement, was clearly untrue.

13 After Mr Hassan and Ms Chitra had finished re-examining the accused, the DPP raised the following issue before me: ¹¹

14 I then checked with the DPP if he just wanted to confirm whether there was any allegation that the accused was not adequately represented by his previous counsel. ¹² Mr Hassan said that since the DPP raised an allegation of misconduct by the lawyers, the lawyers should have a chance to respond but he was not sure that applied in criminal cases. ¹³ In disciplinary matters, that would be applicable, but it would not follow for criminal cases. The DPP disagreed. The DPP referred me to the Court of Appeal case of Mohammad Farid bin Batra v Public Prosecutor and another appeal and other matters [2020] 1 SLR 907 (“Farid”) and mentioned that the Court of Appeal remitted the matter back to the trial judge to take further evidence to determine whether or not instructions that were given to the counsel were carried out or not carried out as the case might be. ¹⁴ I informed the parties that we would not want to have this become a retrial as that would be very wasteful in resources. To avoid that, we could recall the accused to ask him whether there was any issue with his representation by counsel during the conduct of the trial prior to Mr Hassan and Ms Chitra coming on board as his present counsel. If the accused confirmed that he was not making any such allegation, then it would be alright. ¹⁵ However, if the accused was making such an allegation and assuming there was a problem between the accused and his previous counsel that compromised his examination-in-chief, then there would be a complication. ¹⁶ I said that the remedy was to have the accused return to give any other evidence that he wished to give to remedy the possible inadequacy in his representation by his previous counsel. With Mr Hassan now as his new lead counsel, the accused could have an opportunity to give all the evidence that he wanted to give in evidence-in-chief, as opposed to being limited to a re-examination of what he had been previously cross-examined upon. Then there could be further cross-examination and we would just finish one more round of that process. ¹⁷ I said that would probably be the best way forward to remedy that problem in the event that the accused said that his evidence-in-chief was compromised because of the difficulty in giving proper instructions to Mr Johan and his team before they were discharged to which both the DPP and Mr Hassan agreed. ¹⁸ I further stated that as far as misconduct was concerned, that was another separate issue because evidence pertaining to such possible misconduct may be referred to later on for further action. If the relevant authorities deemed it fit to investigate, they could do that, and the persons concerned would have a chance to respond to whatever that was being alleged and I emphasised that I would not deal with any alleged misconduct in this trial because that was really a separate matter. ¹⁹

15  I expressed my concern as follows: ²⁰

16 As Mr Hassan also agreed with that approach, I stood down for ten minutes for Mr Hassan to take instructions from the accused. Mr Hassan then raised an additional problem that the conduct of the cross-examination of the Prosecution witnesses by previous counsel would be compromised as well. ²¹ Then I said that such deficient representation could be remedied by recalling those Prosecution witnesses to be further cross-examined by Mr Hassan. In a sense, it would be a new retrial in a limited way in the present proceedings. ²² The DPP agreed that was the most practical solution at this point to avoid a retrial. ²³

17 As Mr Hassan had to take further instructions from the accused on his allegations of inadequate representation which might have prejudiced the cross-examination of the Prosecution witnesses and the accused’s examination-in-chief after his defence was called, this issue had to be deferred to a later date. Meanwhile, I proceeded to hear evidence of a psychiatrist Mr Munidasa Winslow (“Mr Winslow”) called by the defence. After Mr Winslow’s evidence was completed, Mr Hassan said that that was the case for the defence except for the few other things that were outstanding, ²⁴ namely, the issue of inadequate representation.

18  Since the DPP wanted to call Babu as a Prosecution witness to rebut specific portions of the accused’s evidence under s 230 of the Criminal Procedure Code (Cap 168, 2012 Rev Ed), ²⁵ particularly to rebut the accused’s evidence that Babu told him there was one packet ordered and not three, ²⁶ I ruled against the objection of Ms Chitra that the Prosecution was not entitled to call Babu as a rebuttal witness in the case. ²⁷ I proceeded immediately to hear Babu’s evidence-in-chief to avoid further delays to the trial. After Babu’s evidence-in-chief in rebuttal was completed, Mr Hassan was supposed to cross-examine Babu but he was not ready to do so. Mr Hassan needed to take instructions and requested the cross-examination of Babu to be deferred to the next tranche of the trial. ²⁸

19 Before the trial was adjourned to the next tranche, the DPP raised the matter of allowing the accused the opportunity to give evidence-in-chief again, out of recognition of the prejudice to his defence due to inadequate representation by his previous counsel. ²⁹ The DPP resiled from his previous position (after having reviewed it) and now submitted that the accused should not be allowed to give evidence-in-chief again on the basis of the allegedly inadequate representation that had compromised his defence unless that inadequate representation had first been proved as a fact by the accused. ³⁰ To do that, the DPP said that the accused’s allegations pertaining to inadequate representation should be set out in an affidavit by the accused and his previous counsel should have the opportunity to reply. The previous counsel should also be made to give evidence to determine whether or not the previous counsel’s representation was in fact inadequate, and the court would have to make a finding of fact on that before the accused would be allowed to have a second bite of the cherry in giving his evidence-in-chief for a second time. ³¹ I agreed with the DPP that it would be very “messy” if the accused were allowed to redo his examination-in-chief without first having proved that his previous counsel’s representation was inadequate, to which the DPP added that it was unfortunate but as a matter of principle, the court should not simply give the accused the benefit of doubt that there was inadequate representation. The DPP submitted that the court would have to determine one way or another whether the accused’s allegations were correct or not before he is given a second bite. ³² That would mean having to conduct a lengthy ancillary hearing on the issue of inadequate or deficient legal representation (including on whether the accused’s instructions were carried out) and then making a finding after hearing submissions. ³³ I was reluctant to embark on an ancillary hearing and would have preferred to allow a simple recall of the accused to testify on those matters that he said were left out because instructions to his previous counsel were not carried out by his counsel. ³⁴

20 However, I decided to follow the course of action the DPP had proposed, ie, to hold an ancillary hearing. I asked counsel to ascertain once more whether the accused was indeed complaining about deficient representations and if so, to set the accused’s complaints out in an affidavit properly and serve the affidavit on his previous counsel, who may then respond on affidavit. ³⁵ Thereafter, an ancillary hearing would be held with oral evidence being given and witnesses being cross-examined accordingly.

21  An ancillary hearing was thus held to determine if the accused’s allegations of inadequate legal representation were borne out. The accused waived his legal privilege in relation to his instructions to his previous counsel for the purposes of the ancillary hearing. ³⁶

22 The following witnesses testified at the ancillary hearing:

23 In the affidavit filed for the purpose of the ancillary hearing (the “accused’s affidavit”), the accused complained that his previous counsel had refused to follow his instructions on the following matters: ³⁷

24 The accused alleged that his previous counsel failed to: ³⁸

(a) take full instructions on his defence;

(b) render independent legal advice to him;

(c) determine what the Prosecution’s case against him was;

(d) provide him with the Agreed Bundle and opening address on time;

(e) address his concerns; and

(f) refrain from discussing his defence with the co-accused’s counsel.

25 The accused felt that his previous counsel did not run his defence in the way he wanted it. ³⁹ In the course of the accused’s lengthy evidence-in-chief during the ancillary hearing, the accused’s complaints were distilled to ten specific complaints as set out below.

26 Mr Johan and Mr Revi Shanker deny the allegations made by the accused in his affidavit, in particular, those set out in Appendix 1 of the accused’s affidavit including the ten specific complaints that the accused alluded to in his evidence-in-chief.

27 The accused complained that his previous counsel did not follow his instructions to lead evidence during his evidence-in-chief to highlight the fact that he had made a further voluntary statement on 6 February 2015 (“6 February Statement”) to the Investigating Officer Mr Shafiq Basheer (“IO”). The accused wanted the 6 February Statement admitted into evidence so that the accused could explain in court why he had given this statement implicating Babu which was different from (a) his earlier handwritten statement where he stated to the contrary that Babu was not involved; and (b) his statement to the Senior Assistant Registrar (“PTC Judge”) at the Pre-Trial Conference (“PTC”) in December 2014 that Babu was not involved.

28 The accused wanted to have all the circumstances that eventually led him to provide the 6 February Statement to be admitted in evidence so that the court could better understand why he had changed his story in relation to Babu’s involvement. He wanted to be able to testify that Babu had pressured him into making a further statement to the IO to say that he (ie, Babu) was not involved. That was why at the December 2014 PTC, the accused said that Babu was not involved. As a result, the PTC judge directed a further statement to be taken to confirm the accused’s position. But when the further statement was eventually taken on 6 February 2015 some two months later, the accused changed his mind and did not follow through with his earlier story to the PTC judge. Instead, the accused told the truth to the IO to say that Babu was in fact involved and to state that it was fear and pressure from Babu, which caused him to say that Babu was not involved on previous occasions. More specifically, the accused wanted his further statement to the IO admitted into evidence to show that he had in fact mentioned that Babu had pressured him into making earlier statements that his co-accused was never involved. This was not done by his previous counsel.

29 After having provided his 6 February Statement, the accused maintained that Babu was involved in subsequent PTCs. He stood by that story. In other words, the only time his story was different was earlier in December 2014.

30 I asked the accused to explain what happened between December 2014 and February 2015 that caused him to change his story from not implicating the co-accused (not being the Babu whom he dealt with) to one that implicated the co-accused as the Babu whom he dealt with in the drug transaction. ⁴⁰

31 The accused explained that during that period, he was unrepresented. Other inmates had advised the accused that Babu was trying to make the accused take the rap and put the blame entirely on the accused. He had thought about it. The accused came to the realisation that Babu was using him and was trying to play him out. He then decided to come out with the truth in his 6 February Statement. ⁴¹

32 Although the accused did not tell Babu that he had implicated him in his 6 February Statement, the accused did inform other inmates. The accused said it was very frustrating to be inside the prison all alone. When people showed him concern and asked about him, he ended up telling them that he had implicated Babu because there was no one else to speak to. ⁴²

33 The accused explained that Babu kept pressurising him and kept telling him to do various things. The accused suspected that Babu realised that the accused had incriminated him in the 6 February Statement either after Babu had obtained the bundle of documents or after his lawyer told him about it. ⁴³

34 The accused said that his girlfriend Ms Kavitha used to visit him every day. Then he realised that she was seeing another inmate caught for a drug-related matter. Babu told the accused that when he had a face-to-face visit with his family, he noticed Ms Kavitha meeting another inmate for a face-to-face meeting. The accused also heard from his own family that Ms Kavitha was seeing someone. Apparently, Ms Kavita was having an affair with that inmate but the accused did not know about it at that time. The accused learnt about it later in prison after he was told of it by Babu and the accused’s family members. Another inmate at a video link PTC informed the accused that Babu told him that the accused’s girlfriend had two-timed the accused. Upon hearing that at that point of time, the accused was so heartbroken that he in fact cried. ⁴⁴ The accused became depressed over what his girlfriend had done. He was on medication for his depression. ⁴⁵ The accused said: ⁴⁶

35 Mr Manoj came to represent the accused subsequently on 14 July 2015. But he was discharged by the accused sometime in November 2015 because Babu told him to do so. The last time Mr Manoj saw the accused was on 12 November 2015. I asked the accused to explain the circumstances that led him to follow Babu’s instructions to discharge Mr Manoj when the accused was not unhappy with Mr Manoj as his counsel. ⁴⁷

36 The accused said that he had suicidal thoughts. He discharged his lawyer on Babu’s instructions. He also did not want to speak to the IO or any lawyer and decided that he would just take the rap and carry on with what Babu wanted him to say or do. He would speak to Babu’s lawyer so that he could give him a statement to get Babu off. He would do everything that Babu wanted. That was what he told Babu when they met at one of the video link PTCs. ⁴⁸

37 As the accused had said in that PTC that he wanted to see Babu’s lawyer, Babu told him to write in so that his lawyer could see him. So, in that very month after the PTC, the accused filled up a lawyer interview form to request to meet Babu’s counsel, Mr Tiwary. The co-accused’s counsel made a booking to visit the unrepresented accused on 28 December 2015. But that was cancelled. Mr Tiwary eventually made a tele-visit to the accused in prison on 21 January 2016. ⁴⁹ According to the accused, he and Mr Tiwary started off with a casual conversation. The accused said: ⁵⁰

The accused further said: ⁵¹

38 Mr Tiwary visited the accused a second time on 25 January 2016 to interview him. It was ascertained to be another tele-visit. Mr Tiwary asked what happened on the day of the accused’s arrest. The accused narrated to him what happened. He told Mr Tiwary the truth about Babu’s involvement and that Babu was his boss (ie, for the drug transactions). However, the accused also said to Mr Tiwary that he had asked him for Babu’s statement and why did Mr Tiwary not give to him. Mr Tiwary replied that he could not give Babu’s statement to the accused and that the accused had to ask Babu for that. The interview ended with the accused not giving any statement to Mr Tiwary because the accused had not received Babu’s statement as he had requested. ⁵² During that visit, Mr Tiwary also told the accused as follows: “You---let’s get Babu out of the picture. Once Babu is out of the picture, then I can represent you”. ⁵³ The accused understood the words “out of the picture” to mean that the charge against Babu would be dropped and Babu would go out a free man. ⁵⁴ Mr Tiwary also told the accused: “After you give me the statement, don’t do anything else, just remain as it is. Don’t say anything else.” ⁵⁵ Mr Tiwary also said to the accused: “Look, Hari, you have given statements A, B and C. There should not be a D statement, otherwise they will say that you are inconsistent.” ⁵⁶ The accused understood Mr Tiwary to be saying that he should not make any further statements to the IO after he had given his statement to Mr Tiwary. ⁵⁷

39 Somehow Babu had gotten wind of the accused’s conversation with Mr Tiwary that the accused was requesting for Babu’s statement from Mr Tiwary. Babu subsequently confronted the accused and said, “Why are you asking for my statement? I already you whatever I said. You know, you agree to make a statement, just make that statement. Why are you asking for my statement?” ⁵⁸ According to the accused, Babu’s motive was to get out of the charge totally and then he would use his lawyer Mr Tiwary to represent the accused. ⁵⁹

40 During a face-to-face meeting with Mr Tiwary in prison on 2 April 2016, the accused handed to Mr Tiwary a handwritten statement dated 3 March 2016 (“handwritten statement”) telling him that this was the statement that his client wanted and he had written it. The accused did not tell Mr Tiwary that he had produced his handwritten statement by copying it from another document that had been handed to him by Babu. ⁶⁰

41 The last visit by Mr Tiwary was 15 April 2016. At this tele-visit, the accused recalled the following: ⁶¹

42 The accused went on to say:

43 The accused said that he slowly came to the realisation that Babu was “play[ing] him out” because he heard from some others that Babu had mentioned him in his statement though he never saw Babu’s statement. The accused’s family was also “sort of leaving” him. With the help of medication for depression, he saw things more clearly, and did not harbour thoughts of ending his life. He thought things through and that was when he decided that he was not going to let Babu “play [him] out”. The realisation struck him during the tele-visit of 15 April 2016 when he overheard the conversation between Babu and his lawyer, Mr Tiwary, that Babu was going to get away with possession and that “things [were] going to change”. That was when he came to the realisation that Babu had used him and was going to “fix [him] up”. ⁶⁶

44 The handwritten statement ⁶⁷ signed by the accused was tendered in evidence at the ancillary hearing. In the statement, the accused mentioned amongst other things that:

(a) The Central Narcotics Bureau (“CNB”) officers told him to cooperate with them and made him say that Babu was the one who gave him the drugs. Otherwise, they would send him to the gallows. He did as he was instructed as he was scared.

(b) The statement he gave to the CNB officers was false as he was induced and threatened by the CNB officers many times.

(c) On 2 December 2014, he told the court during his video-link hearing that Babu was not involved and he was working for a Malaysian boss by the name of “Boy” as he was in debt.

(d) He wanted to tell the truth now and confess that Babu was innocent. Babu had nothing to do with the drug activity.

45 The accused instructed his previous counsel to adduce as evidence his handwritten statement that exonerated Babu but they did not do so during his examination-in-chief. He wanted to have the opportunity to explain the circumstances that led him to make the handwritten statement and to give that to Babu’s counsel. He wanted the court to know the full picture. He wanted to testify that he produced the handwritten statement due to the fear and the pressure that Babu was applying on him since 2014. To enable the accused to prepare the handwritten statement, Babu forwarded to the accused a folded note from which the accused was to copy the contents. The accused adhered to Babu’s instructions. The accused testified that the contents were written by him but whatever was there in the contents was what Babu wanted him to say. ⁶⁸ The accused prepared the handwritten statement in his cell. He flushed the folded note down the toilet after he finished copying from it because Babu had told him to get rid of it once the accused had finished with it. Furthermore, if he was caught with it by the prison officers doing their checks, there would be issues according to the accused. ⁶⁹

46 The accused insisted that he had made clear to his previous counsel the reasons why he wanted his handwritten statement to be produced in court despite the fact that it implicated the accused and exonerated Babu. To his previous counsel, it obviously made no sense to adduce an incriminating statement as evidence. His previous counsel might not have fully grasped the underlying reason as to why the accused simply wanted to explain to the court that he had good reasons for his earlier different position exonerating Babu and his later position implicating Babu in the offence, just so that the accused could demonstrate to the court why he should not be treated or brushed aside as a witness who could not be believed due to his differing stances. The accused testified that: “If this statement did not go in, then I will make---be made to look like a liar. So I insisted that this handwritten statement has to go in.” ⁷⁰ When the accused insisted on putting into evidence his handwritten statement, the accused testified that his previous counsel told him, “no, … Mr Ramesh Tiwary was not going [to] use the statement and so it will not be admitted. … If we admit this statement, then we have to put Mr Tiwary on the stand and question him. And how is that going to happen when Babu has paid him?”. ⁷¹ The accused further testified that his previous counsel had also told him: “Ramesh is not using that statement so there’s no need for it. So we’ll just leave it alone.” ⁷² His previous counsel (apparently referring more specifically to Mr Johan) would say: “I am your lawyer. You have to listen to me. You don’t tell me what to do. I know what to do.” ⁷³ , “You think you’re very smart? Then you defend yourself. You want to discharge me? Go ahead.” ⁷⁴ And “I’m your lead counsel; you listen to what I tell you.” ⁷⁵ Whatever the accused insisted, they would show their tantrums to him. For instance, Mr Johan would throw down his pen or raise his voice. ⁷⁶ Besides Mr Johan would speak to him in a very arrogant and rude manner whenever he spoke to him. ⁷⁷ He had also complained about Mr Johan’s overbearing conduct in Tamil to Mr Revi Shanker, who would listen and calm the accused down. ⁷⁸ In short, the accused’s repeated requests to have his handwritten statement admitted were brushed aside by his previous counsel. The accused felt that his previous counsel were not really trying to help him. He felt that his previous counsel were reluctant to believe him or do as he told them to do.

47 The accused also mentioned that he had also shown his handwritten statement to Mr Sunil ⁷⁹ and told him that he wanted his handwritten statement to be admitted as evidence. ⁸⁰ Mr Sunil told him that if the accused wanted to use the statement, then Mr Tiwary could not act for Babu. As Mr Tiwary was his friend, he could not do this. ⁸¹ When he insisted that he wanted his handwritten statement to be in, Mr Sunil told him that as Mr Tiwary was his friend, he could not do this, and then, Mr Sunil discharged himself. ⁸²

48 However, I note that part of the evidence of the accused in relation to Mr Sunil is contradicted by Mr Sunil who testified that he received no express instructions from the accused to admit the handwritten statement. ⁸³

49 It also appeared to the accused that something else was happening in the background as there was a point of time when Mr Revi Shanker told him: “Look here, I’ve spoken to Mr Tiwary and Mr Tiwary says we should do this”. ⁸⁴ Mr Revi Shanker said that Mr Tiwary had told him to ask the accused to let Babu go, take the rap and Babu would help the accused. ⁸⁵ The accused further remembered that in one tele-visit, Mr Revi Shanker told the accused not to mention Babu’s name and that Babu would help him. The accused testified that:

50 When the accused informed his previous counsel of his defence that he was not expecting to collect two extra packets but was assisting to collect only one packet, his previous counsel gave the accused one solution: “If you do like what has been told to you to do, you will get support from Babu.” ⁸⁸ The accused explained as follows:

In essence, Your Honour, Babu would have become my witness to say that I and Boy were involved in this and that Boy had asked for payment for one bundle and mistakenly two bundles had come. He would come to testify that in my favour. I felt that this was happening behind my back, this---this scheme was going on to get Babu out of the picture and Babu would help me in this manner. But I would be the scapegoat. ⁸⁹

51 His previous counsel (and mainly Mr Revi Shanker) advised him: “It’s your life. Why you put your life at stake? Or and why but must both of you all fight over it? Let one person go and somehow he will help you to escape the gallows.” ⁹⁰ Mr Revi Shanker told the accused: “If you do as I say, then definitely you won’t face the gallows. You’ll only get punishment.” ⁹¹ At another part of the accused’s evidence, the accused said that Mr Revi Shanker had told him: “Ramesh says don’t pull Babu into this. Babu has got nothing to do with this. This is all yours. Leave him out of this. He will come out and help you.” ⁹² Mr Johan put to the accused in cross-examination that all of that did not happen (ie, Mr Revi Shanker did not say those things to the accused) to which the accused disagreed. ⁹³

52 How the multiple changes of legal counsel representing the accused for the capital trial affected the accused was explored when the accused gave his evidence at the ancillary hearing.

53 Even before Mr Johan was engaged to defend the accused, ⁹⁴ the accused recalled bring told at a PTC by one of the PTC judges that “If you keep changing like this, we may not even end up assigning you a lawyer and you would have to do the case yourself.” ⁹⁵ The accused felt all this was against him. He felt there was nothing else he could do and he had no one else to turn to for advice. He was therefore afraid to discharge Mr Johan and Mr Revi Shanker and had to hang on to them because he was worried that he might end up having to defend himself after the numerous changes of counsel. ⁹⁶

54 It was put to the accused by Mr Johan that the accused was well-advised about this handwritten letter, which bore an admission of the accused and the accused instructed his previous counsel not to admit this letter ⁹⁷ . The accused disagreed to having been advised against having the letter admitted because it incriminated him. The accused testified that all they told him was that Mr Tiwary was not using this statement, so he did not have to worry about it. The accused said, however, that he had told his previous counsel: “Even if Tiwary is not using it, it’s important to me. I want it admitted.” ⁹⁸

55 The accused clarified that when Mr Johan told him that Mr Tiwary was not using the statement, he kept quiet because he could not talk to Mr Johan but was not happy. He never said he was agreeable to not having the statement admitted, ⁹⁹ thus essentially denying the put question that he had explicitly given his instruction not to admit the handwritten statement of his. He further disagreed with the put questions that he was very happy and relieved upon hearing Mr Johan tell him that Mr Tiwary was not using the statement, ¹⁰⁰ and that he was at peace and was prepared to have the statement not being used at all by counsel. ¹⁰¹ At another part of the cross-examination by Mr Johan, it was further put that Mr Johan told the accused that the DPP also would not be using it. Again the accused disagreed. ¹⁰²

56 During cross-examination by Mr Johan, the accused testified that Babu’s statements were given to him by his previous solicitor Mr Sunil, who was his solicitor prior to Mr Johan. The accused agreed that Babu’s statement incriminated him. ¹⁰³ When asked if he was angry after reading Babu’s statement, the accused said he was heartbroken ¹⁰⁴ and that his relationship with Babu “came to nothing” because Babu had stated in the statement that (a) he was the one who introduced Boy to the accused; (b) the accused was involved with drug activities with Boy, who was the accused’s drug supplier; and (c) the accused in turn supplied Babu with drugs for his consumption whereas he (ie, Babu) had nothing to do with it (ie, the drugs in this case). ¹⁰⁵ Babu further stated in his statement that the accused mentioned Babu’s name because of threats and inducements from the CNB officers. ¹⁰⁶

57 The accused complained that the accused’s previous counsel failed to follow his instructions to adduce Babu’s statement. His previous counsel could have admitted Babu’s statement during the Prosecution’s case through the IO and/or interpreter who were present at the recording of Babu’s statement.

58 The accused wanted Babu’s statement to be admitted as evidence to show that his handwritten statement closely mirrored Babu’s statement. When questioned, he could then explain how he came to write the handwritten statement and the court would then know the role that Babu played. After realising that Babu was making use of him to escape totally and let him take the rap, he no longer wanted to allow Babu to manipulate him anymore and decided that he wanted to live. ¹⁰⁷ He wanted the court to have a full picture of what happened. The accused insisted that a comparison of the two statements was needed to buttress the accused’s evidence that Babu had given the accused a written document and instructed the accused to copy it to produce a statement in the accused’s own handwriting. If Babu had not given those instructions, the contents of the accused’s handwritten statement could not have closely tracked the contents of Babu’s statement to the CNB officers. The accused had that strategy in mind. However, his previous counsel told him that Babu’s statement was not in the Agreed Bundle and the Prosecution was not using Babu’s statement. Accordingly, there was no need for it. Mr Johan told him that when Babu was on the stand, they would hear oral evidence from him.

59 In cross-examination, Mr Johan put to the accused that he did not tell Mr Johan to put Babu’s statement into evidence in court, ¹⁰⁸ or ask Mr Johan to put Babu’s statement in the greed bundle, ¹⁰⁹ to which the accused disagreed.

60 The fourth complaint concerns the previous counsel’s failure to follow through with the accused’s instructions to admit into evidence a handwritten document wherein the accused had written down what he could remember of the various calls based on the call logs in the Agreed Bundle. The accused wanted to show to some degree of detail the relationship between himself and Babu. According to the accused, the call logs contained the following: ¹¹⁰

(a) There was a particular message which showed that Babu was in communication with one Alan, who was a customer of Babu’s, and who was coming to collect the drugs.

(b) The messages would also show that Alan apparently went missing after collecting the drugs, but that Alan was still in communication with Babu.

(c) One message showed that Alan said he would pay the money owing. The accused told his previous counsel to look at the sequence of the messages, and to look at them to see how much drugs that Alan had ordered and was receiving from Babu.

61 According to the accused, the call records would also show that in his first transaction, he had dealt with two bundles and that Babu had given him certain specific instructions that Babu had ordered two packets of drugs which he asked the accused to collect. The call records would also show that there were three or four drug transactions. The accused further testified that the call records would demonstrate that all the earlier transactions had always involved one or two packets, and that the “regular customer” was always Alan. For the last transaction, Alan had simply taken the drugs before going missing. The accused said he had told all of this to his previous lawyers. ¹¹¹

62 The accused further explained as follows: ¹¹²

63 The accused testified that he had given the document he prepared in relation to the call logs to his previous counsel and asked them to admit it into evidence, but Mr Johan dismissed it as “rubbish”. ¹¹³ Mr Revi Shanker reassured the accused, saying: “It’s okay when you go on the stand, I will have this admitted in Court.” ¹¹⁴ The accused complained that, however, when he went on the stand, Mr Revi Shanker never did what he had promised to do.

64 The accused described the difficult situation he faced as follows: ¹¹⁵

65 The fifth complaint is about the previous counsel’s failure to follow the accused’s instructions to obtain the call logs of: (a) two local telephone numbers 84790320 and 84322980 (one of which was the phone number of Babu’s girlfriend, Ms Siti Suriayanti binte Ali (“Ms Suriayanti”), and the other was Babu’s); and (2) one Malaysian telephone number 60149817958. Babu used to communicate with the accused using the Malaysian telephone number when he was in Malaysia and this was the same number that Babu used to communicate with Boy. ¹¹⁶ The accused said that one of the telephone numbers belonging to Babu which he provided was not discovered during investigations. The accused explained that the purpose of the call logs was to evidence communication between Babu and the other person in Malaysia which would prove that Babu was “very involved”. The accused testified that Babu’s involvement in drugs began even before the accused’s own involvement, ie, before the “Hari Raya period at that point of time”, and that Babu’s phone records would demonstrate this. ¹¹⁷

66 The previous counsel’s response in their submissions was that no instructions at all were received from the accused in relation to obtaining the call logs. ¹¹⁸

67 The sixth complains pertains to the accused’s counsel’s failure to obtain certain closed circuit television (“CCTV”) camera footages, despite the accused’s instructions to do so. As the accused found it easier to communicate with Mr Revi Shanker than with Mr Johan, he instructed Mr Revi Shanker to obtain the CCTV camera footages of the lift landing on the 11th floor of the Toa Payoh flat and the lift landings on the 7th and 8th floor of the Commonwealth flat. Mr Revi Shanker’s initial response was that he would go back and look into it. But when Mr Revi Shanker came back and the accused raised the subject of the CCTV camera footages again, he told the accused all that was not necessary and said, “What you have should be enough”. ¹¹⁹ The accused complained that in essence, Mr Revi Shanker did not do anything about the CCTV camera footages although the accused had insisted on obtaining them. To the accused, they appeared to be telling him not to bother about the CCTV camera footages and just focus on what he already had. ¹²⁰

68 The accused said he could not express his unhappiness because his greatest fear was that if he did so, his previous counsel might decide to discharge themselves, to his prejudice. ¹²¹ The accused, however, did show his frustration by repeatedly asking why they could not find it or why it could not be done. ¹²²

69 Mr Johan denied this and testified that no such instructions were given by the accused to obtain the CCTV footages. ¹²³

70 The seventh complaint pertains to the accused’s previous counsel’s failure to respond to the accused’s queries about Ms Suriayanti. The accused asked his previous counsel if charges were preferred against Ms Suriayanti (also known as Farah to the accused), who was the girlfriend of Babu and whether any statement was taken from her. The accused said that he needed to see her statement. However, according to the accused, his previous counsel did not respond to the accused. Neither did they make any effort to find out if she had given any statement. Moreover, the accused said he had initially noticed that Ms Suriayanti was listed as a witness of the Prosecution, and wanted his previous counsel to find out why the Proecution was not interviewing Ms Suriayanti; he said he wanted to find out “why was she seeing the defence counsel and also if she is a [P]rosecution witness, she would know something about the drugs”. Although the Prosecution did not call Ms Suriayanti as a witness and his previous counsel advised that it was favourable to the accused that she was not called, the accused nevertheless wanted to find out what was in her statement. ¹²⁴ The accused could not accept his previous counsel’s advice because he thought that her statement might be helpful to his defence. ¹²⁵

71 The accused said that drugs were found in Ms Suriayanti’s house and she was arrested for that. The accused also said that Ms Suriayanti: (a) was aware of the drug dealings between the accused and Babu; (b) knew who “the boss” was; (c) knew the role of the accused; and (d) was aware that the accused was helping Babu out. She could therefore shed light about the accused’s role. ¹²⁶

72 The previous counsel denied that the accused had given such instructions to obtain Ms Suriayanti’s statement from the CNB. ¹²⁷

73 The accused informed his previous counsel that Ms Siti Suriayanti had spoken to the co-accused’s counsel, Mr Tiwary. The accused asked his previous counsel to find out what their conversation was all about or at least raise the issue that such an incident had taken place. His previous counsel did not respond to the accused on this request.

74 The previous counsel denied that the accused had given such instructions. ¹²⁸

75 The accused told his previous counsel that there were certain omissions and inaccuracies in his long statements to the CNB officers. The accused said that his previous counsel did not advise him on how to deal with them, nor did they cross-examine the IO on certain inaccuracies. ¹²⁹

76 When the accused was giving his evidence-in-chief, his previous counsel failed to question him on some of the inaccuracies that he had brought to their attention. The accused felt that his previous counsel did not question him properly and bring out the accused’s reasoning for the inaccuracies. The accused said that he had explained to them that things did not happen in the way that was stated in the statement, and that he had told them how it actually happened. His previous counsel seemed to disregard what he told them. He sensed that they did not really take him seriously. According to the accused, every time the accused pointed out some inaccuracies, his previous counsel would dismiss him and say: “No, no need, go to the next one. This one not necessary.” The accused found his previous counsel to be dismissive of him. Accordingly, these inaccuracies in his statement were not properly dealt with when he was on the witness stand. ¹³⁰

77 One of the inaccuracies was in relation to Babu telling him what the drug shipment was going to be like, what was the amount, how much to expect and how much would be coming in. Another inaccuracy was that the statement had stated that the accused only came to realise the quantity of drugs which actually arrived after collecting the drugs. However, the accused testified that he had not said it like that, and that was not how the events actually happened. The accused also highlighted that there were inconsistencies in the statement in relation to Babu ordering the bundles whilst he was in Singapore. ¹³¹

78 The accused said that there were also omissions from the statement. He had told the IO about the earlier drug transactions that he had done for Babu, the shipment quantity, how much Babu told him to collect and how much would come. The accused had pointed out to his previous counsel that those pieces of information were missing from his statement. ¹³²

79 The accused had instructed his previous counsel that he wanted to have a chance in court to rectify the inaccuracies and omissions in his long statements to the CNB officers.

80 In the previous counsel’s submissions, it was pointed out that the accused’s affidavit failed to particularise which parts of his statements were inaccurate and that these allegations were not put to the previous counsel when they were cross-examined. ¹³³

81 The accused complained that he received the Agreed Bundle very late. ¹³⁴ The Prosecution clarified that the Agreed Bundle was identical to the Preliminary Inquiry (“PI”) bundle except that the service letters from pages 1 to 58 were taken out from the PI bundle when compiling the Agreed Bundle. ¹³⁵

82 The previous counsel stated in their affidavits that the Agreed Bundle was received by them on 2 April 2019. A copy was immediately handed over to the accused. ¹³⁶

83 During the ancillary hearing, the accused gave extensive evidence in relation to the previous counsel’s improper conduct when they were representing him.

84 According to the accused, his previous counsel had asked him to take responsibility for all the three bundles of drugs, which were found in the accused’s possession. They told the accused that if he were to take responsibility as suggested, then the co-accused (ie, Babu) would give evidence to say that he had ordered only one bundle (and not three bundles) of drugs. Mr Revi Shanker also told the accused to say that the CNB officers had induced the accused to implicate the co-accused in his statements.

85 The accused did not agree with his previous counsel’s various proposals as the co-accused was involved and he did not feel it was at all fair that he should take full responsibility for the drugs when the co-accused as the mastermind would be totally exonerated. The accused did not agree to exonerate the co-accused entirely by testifying that he was liaising with a different person called Babu (who was not the co-accused) for the delivery of the drugs to him.

86 The accused basically wanted the co-accused to support his defence that the co-accused had only ordered one bundle of drugs and had arranged for delivery of only one bundle (and not three bundles) of drugs to the accused. However, the supplier inadvertently delivered three bundles of drugs to the accused. If the accused were to help exonerate the co-accused by testifying that the co-accused was not the Babu in question, then the accused believed that the co-accused would be in no position to help him in turn by testifying that there was an order of only one bundle of drugs.

87 The accused said that the co-accused’s counsel, Mr Tiwary, and his previous counsel were all trying to persuade him to take full responsibility for the three bundles of drugs to exonerate the co-accused. Mr Revi Shanker also suggested that the co-accused would say that one bundle of drugs was ordered, and that the co-accused would get other witnesses to say that the additional two bundles of drugs were like “extras” not to be trafficked in.

88 The accused testified that his previous counsel had further informed him that the co-accused’s counsel had told them that if the accused did not assist the co-accused, then the co-accused would call at least five witnesses to give evidence at the trial that the accused had ordered three bundles of drugs. On this, the accused said that he felt that the threat emanated from the co-accused, who relayed the threat his own counsel, Mr Tiwary, who in turn informed the accused’s previous counsel, who in turn relayed it to him. ¹³⁷ However, the accused said he was not frightened by the threat because the accused said that it did not happen (ie, he did not order three bundles of drugs), ¹³⁸ and there would be no witnesses to come forward to say that he did. ¹³⁹ In other words, as far as the accused was concerned, he was not afraid as it amounted to an empty threat because there could not possibly be five witnesses who would come forward to testify that the accused in fact ordered three bundles of drugs. ¹⁴⁰ The accused added that he felt it was not right of Mr Revi Shanker to have: (a) relayed the message that there would be five witnesses who would testify against the accused; and (b) expected the accused to be frightened by it and do what Mr Tiwary wanted the accused to do, ie, to exonerate the co-accused. ¹⁴¹ Mr Johan in cross-examination put to the accused that Mr Revi Shanker did not convey any threat from Mr Tiwary to the accused, to which the accused denied. ¹⁴²

89 The accused also claimed that the previous counsel told the accused that if the accused “killed” the co-accused, the co-accused’s counsel would “kill” him, which the accused understood to mean that if the co-accused was to be convicted on the accused’s evidence, then the co-accused’s counsel would ensure that the same would be done to the accused.

90 Mr Johan finally put to the accused that all his allegations about his previous counsel trying to change his evidence to support Babu were “all untrue, absurd, ridiculous” to which the accused disagreed. ¹⁴³

91 When he was being cross-examined by Mr Johan, the accused further testified that Mr Revi Shanker even suggested to him that he should say that the CNB officers induced him to implicate Babu in his CNB statements: ¹⁴⁴

92 The accused later further elaborated that, “Mr Revi [Shanker] was trying to get me to say that CNB officers had induced me when, in fact, that didn’t happen.” ¹⁴⁵

93 Mr Johan put to the accused that Mr Revi Shanker never said such things to the accused. The accused disagreed. ¹⁴⁶ The accused firmly asserted that, “That the CNB induced me is not true.” ¹⁴⁷ The accused then commented that, “With Mr Revi [Shanker] telling me to do this, and with Mr Ramesh Tiwary questioning me saying that I was induced by CNB officers to implicate Babu in my statement, to me, it seems like they were all in this together.” ¹⁴⁸

94 The accused later elaborated that Mr Revi Shanker had first told him that Mr Tiwary wanted him to say that the accused had implicated the co-accused due to an inducement by the CNB officers. ¹⁴⁹ Later, Mr Revi Shanker himself also told him, “Why don’t you just say that you were induced and you gave that statement that way. ¹⁵⁰ The accused clarified that there were two parts to his communications with Mr Revi Shanker: ¹⁵¹ At first Mr Revi Shanker simply acted as a post-box to convey the message from Mr Tiwary. Then Mr Revi Shanker himself suggested to the accused to say he was induced by the CNB officers to implicate Babu in his CNB statements.

95  The accused testified that when he was unrepresented, Mr Tiwary as the co-accused’s counsel visited him on six occasions: 28 December 2015, 21 January 2016, 25 January 2016, 2 April 2016, 15 April 2016 and 21 April 2016. The accused gave his handwritten statement dated 16 March 2016 to Mr Tiwary during one of these visits (see [40] above).

96 The accused said that the co-accused had handed a handwritten note to the accused for him to copy down and produce a fresh statement in the accused’s own handwriting (see [45] above). This is exhibited as “1T-C1”. By this means, the co-accused ensured that the accused’s fresh handwritten statement would be aligned with the statements of the co-accused. At this time, the accused was depressed and had given up the will to live as he had learnt that his girlfriend was seeing someone. He therefore agreed to take the blame and exonerate the co-accused (see [34]–[36] above).

97 The accused gave evidence of the meetings (conveniently referred to as the 1st, 2nd and 3rd meetings) leading up to the meeting in the lock-up in the Supreme Court.

98 This 1st meeting was a tele-visit involving only Mr Revi Shanker and the accused on 23 February 2019. ¹⁵² It lasted for less than half an hour. ¹⁵³

99 The accused testified that Mr Revi Shanker told the accused that he had spoken to Mr Tiwary over the phone. The accused was asked not to ‘bite’ Babu and not to get Babu involved in this case and when Babu goes out, Babu would help him. This was the first time that the accused heard Mr Revi Shanker telling him of it and that Babu would help the accused with his defence. That was when the accused became angry that his own lawyer was asking him to support a co-accused and was not doing anything to help him. The accused then asked Mr Revi Shanker whether he had read Babu’s statement and because Babu had said something different to the accused, and there was no way that Babu could help the accused in the manner that Mr Revi Shanker was promising him then. ¹⁵⁴ The accused told Mr Revi Shanker, “Babu was just as involved in this case as I was. Let him come and tell the truth.” ¹⁵⁵ Then Mr Revi Shanker told the accused, “Hari, just relax, just listen to what I say.” ¹⁵⁶ This made the accused angry. The accused knocked on the door to call the prison officer to ask if that meeting between Mr Revi Shanker and himself could be recorded. Then the prison officer told the accused, “We don’t record these interviews, only the Court will do that.” There was nothing the prison officers could do. Since the accused was angry, Mr Revi Shanker left. ¹⁵⁷

100 At a later part of his evidence during cross-examination, the accused amplified his evidence by saying that Mr Revi Shanker had further told him that Babu would come to the witness stand to say that the two extra bundles were supposed to be returned to the courier by the accused, ¹⁵⁸ provided that the accused did not involve Babu in the case. ¹⁵⁹ Mr Revi Shanker also conveyed threats from the co-accused’s side to the accused by telling him they would bring five other witnesses and ensure that the accused would be convicted and face the gallows. ¹⁶⁰ Mr Johan then put to the accused that what he attributed to Mr Revi Shanker were blatant lies, to which the accused disagreed. ¹⁶¹

101 The 2nd meeting was a face-to-face meeting in prison on 23 March 2019. Present were Mr Johan, Mr Revi Shanker and two other lawyers, Mr Melvin and Mr Ruben. ¹⁶² They went through the statements and discussed the accused’s case. The accused also explained to them that he was told to collect only one bundle and was expecting only one bundle, which was for a regular customer, Alan, who would only buy a small amount. So, there was no way Alan would order/buy three bundles. ¹⁶³

102 At this meeting, the accused gave his previous counsel the “homework” that the accused did earlier pertaining to the telephone call logs. The accused reminded his previous counsel about going through the document that the accused had prepared on the telephone call logs. ¹⁶⁴

103 The accused highlighted an event which took place during this 2nd meeting as follows: ¹⁶⁵

104 After the discussion, the lawyers left. The meeting lasted less than an hour. ¹⁶⁶

105 I will refer to the 3rd meeting which occurred on 3 April 2019 as the “lock-up meeting”. According to the accused, after Mr Johan had finished cross-examining the IO and just before Mr Tiwary started his cross-examination of the IO, Mr Johan approached the accused and told him: “I’ve already asked all the questions from the IO and finished him. When you come on the stand, then you sing your song.” ¹⁶⁷ After that Mr Revi Shanker approached the accused, who was then still in the dock and told the accused: “Listen to me carefully … Ramesh wants to see you. Ramesh Tiwary wants to see you.” ¹⁶⁸ The accused asked Mr Revi Shanker why Mr Tiwary wanted to see him. Mr Revi Shanker then told the accused, “You have to hear it for yourself and you have to be the one to decide.” ¹⁶⁹ The accused told Mr Revi Shanker: “You are my lawyer and you know that there’s a war going on between him and me. You have to ask him what is it you want---he wants and tell me.” And “You have to ask him what he wants to say to me.” ¹⁷⁰ The accused testified that Mr Revi Shanker kept insisting that the accused should listen to Mr Tiwary himself and that the accused would have to be the one to speak to him. Mr Revi Shanker kept pestering the accused and the accused was wondering why he was doing that. The accused said he had no wish to speak to Mr Tiwary and he really did not know what was happening. However, since Mr Revi Shanker kept insisting, the accused said, “Okay, let’s see what he has to tell me.” ¹⁷¹

106 Earlier, the accused gave testimony on the same event and it was broadly consistent with his later testimony. The accused earlier testified that Mr Revi Shanker had told the accused: “Listen properly, Ramesh Tiwary wants to see you.” ¹⁷² The accused said to Mr Revi Shanker: “We are both fighting against each other. Why should his lawyer come to see me?” ¹⁷³ Then Mr Revi told the accused: “You have to listen to what he has to say and take the decision.” ¹⁷⁴

107 The accused was thereafter brought down to the lock-up. Present were Mr Johan, Mr Revi Shanker, Mr Melvin, Mr Ruben, Mr Tiwary and Mr Satwant Singh. ¹⁷⁵

108 The accused recalled the gist of the meeting as follows: ¹⁷⁶

109 I note that in substance the above evidence the accused gave on 25 May 2022 at the ancillary hearing is largely consistent with the evidence on the same matter that the accused gave some nine months earlier on 31 August 2021 during the main trial (which I have set out at [11] above).

110 In the lock-up, in the presence of previous counsel, Babu’s counsel told the accused to let off Babu, by taking responsibility for all three bundles of drugs. Babu’s counsel said that his client had nothing to do with the drugs. Despite knowing that Babu and his counsel had been asking the accused to let off Babu, the accused’s previous counsel permitted Babu’s counsel to speak to the accused. The accused said that no one took any meeting notes of what was said.

111 Due to some confusion, the accused had to repeat his evidence at a later point in time about what happened at this lock-up meeting and he testified as follows: ¹⁷⁷

112 This version is broadly consistent with his earlier evidence on the lock-up meeting given on two previous occasions.

113 However, a different version of the events on the day of the lock-up meeting was proffered by the previous counsel. According to the accused’s previous counsel, Mr Revi Shanker informed Mr Johan that the accused wanted to see the co-accused’s counsel on this occasion because the accused wanted to know what the co-accused’s defence was before the accused commenced giving his evidence-in-chief. Mr Johan agreed as that was the accused’s instructions. It was not the case that the co-accused’s counsel wanted to speak to the accused. In the lock-up, the accused asked the co-accused’s counsel whether he was going to cross-examine him. The co-accused’s counsel said, “My defence is that [my] client had nothing to do with the 3 bundles”. The co-accused’s counsel then left. The accused then told his previous counsel to fight on. The previous counsel denied asking the accused to let off the co-accused and take responsibility for the three bundles or to say that the co-accused was not involved.

114 In his affidavit, ¹⁷⁸ Mr Revi Shanker exhibited his written notes of the meeting in the lock-up. It recorded the time and date as 11.45 am on 3 April 2019. Parties present were Mr Johan, Mr Revi Shanker, Mr Melvin, Mr Tiwary, Mr Satwant Singh, and Mr Ruben. Mr Revi Shanker took notes of the meeting and recorded the following:

115 The accused disputed this version of events as recorded by Mr Revi Shanker. The accused denied that he asked Mr Tiwary whether his client [ie, Babu] would say that he [ie, Babu] ordered one bundle upon his [ie, Babu’s] instructions. Neither did the accused ask about Babu’s defence. The accused explained that he already knew of Babu’s defence because he had been denying any involvement all along. Mr Tiwary did not say that he would cross-examine him if he implicated his client. Mr Tiwary said: “Don’t bite him. If you do, then I will get four or five witnesses to make sure that they will testify against you.” The accused said that his previous counsel had also already known of Babu’s defence prior to the lock-up meeting. In other words, there was no need to have a meeting in the lock-up just to ask what Babu’s defence was as stated in the lock-up meeting notes of Mr Revi Shanker because it was already known to both the accused and his previous counsel. The accused said he knew about Babu’s defence much earlier and that was before the committal hearing on 30 October 2015. As early as 2014, the accused had already heard that Babu’s defence was that he had nothing to do with this matter, ie, that he was not involved at all. The accused recalled an incident in December 2014, when during a video link PTC session, he personally met Babu for the first time as they were seated next to each other at the holding room whilst waiting for their video link to start for the PTC session. At that first personal meeting, Babu told him to accept all the blame and to leave him out of it. Babu told the accused, “Okay, let’s fight this case together but when you are referring to your boss, don’t say that I am the boss, say it’s a Malaysian boss, refer to the boss as the Malaysian boss”. ¹⁷⁹ At that video link session, the accused did as instructed by Babu because the accused knew that Babu wanted to get out of the charge. Accordingly, the accused mentioned at the video link session that “The Babu I had been referring to is not this Babu”. ¹⁸⁰ The accused therefore exonerated Babu and accepted blame. Babu later hugged the accused and thanked the accused for doing so.

116 The accused did not have any reason to believe that Babu’s position in relation to his defence would change from his initial position with the passage of time. In other words, the accused disputed his previous counsel’s version of events. The accused maintained that it was not true that the accused had wanted to see Mr Tiwary in the court lock-up to ask him about Babu’s defence before he started his examination-in-chief because the accused already knew Babu’s defence prior to the lock-up meeting, contrary to what is stated in Mr Revi Shanker’s written notes of the lock-up meeting. Furthermore, it was confirmed during the lock-up meeting that Babu’s defence remained that he had nothing to do with the drugs. The accused said he was aware of Babu’s defence of total non-involvement with the drugs as early as 2014 and until the date of the lock-up meeting on 3 April 2019, he knew that Babu’s defence remained unchanged because of Babu’s messages through other people, which were relayed to the accused. According to the accused: “Everywhere I go, for interviews or any places that I go to, people, random inmates, even special ward inmates walked up to me and tell me, ‘Why are you involving him in his, why don’t you take the rap and let him go?’ So I get this kind of messages quite often.” ¹⁸¹

117 The accused said that Babu had been putting pressure on the accused since 2014 by sending people to ask him to accept all responsibility and admit to the charge. The accused testified: “…all the inmates that belong to Babu’s SS [Secret Society] group would embarrass me inside ... saying that I was doing the work of a ghost and say humiliating things to embarrass me. They were pressuring---pressurising me to accept all responsibility and to make sure that I vindicate Babu from it and accept all blames for this drug case.” ¹⁸² The accused said that he had even fought with the inmates who shared the same cell as Babu. The accused was frustrated because he ended up fighting with these people who came and disturbed him, asking him to let Babu off and nothing was being done about it by his previous counsel. When he told Mr Revi Shanker about it, Mr Revi Shanker would tell him there was nothing he could do as it was happening in the prison and the prison had to look into it. ¹⁸³

118 In para 24 of Appendix 1 of the accused’s affidavit, the accused alleged that his previous counsel failed to cross-examine other Prosecution witnesses for example:

(a) DSP William Tan

(b) SSI David Ng

(c) SSS Alwin Wong Kah Hung

(d) SSgt Sunny Chien Lik Seong

(e) Sgt Muhammad Helmi Abdul Jalai

(f) Sgt Dadly Bin Osman

119 The response from Mr Johan was that the accused gave instructions not to cross-examine any other Prosecution witnesses except for three Prosecution witnesses as indicated in Mr Johan’s letter dated 16 March 2018 to the accused confirming the accused’s instructions that he wished his counsel to cross-examine only three of the Prosecution witnesses namely: ¹⁸⁴

(a) Tony Ng Tze Chian (“Mr Tony Ng”)

(b) Yogaraj s/o Ragunathan (“Mr Yogaraj”); and

(c) Shafiq Basheer (“Mr Shafiq Basheer”).

120 In relation to Appendix 2 of the accused’s affidavit on the questions that were not asked of Mr Shafiq Basheer, Mr Johan did not think that those questions were relevant. Mr Johan testified that he had asked Mr Shafiq Basheer all the relevant questions that were needed to be asked as he thought fit to do so. ¹⁸⁵

121 Each time Mr Johan completed his cross-examination of the Prosecution witnesses, he would check with the accused whether there were any other questions that he needed Mr Johan to ask. Once there was clear indication from the accused that there were no further questions that need to be asked, Mr Johan would then inform the court that he had no further questions. ¹⁸⁶

122 His previous counsel did not ask Mr Tony Ng about what the accused had told Mr Tony Ng about the drugs found in the Toa Payoh Flat. The accused testified as follows: ¹⁸⁷

123 His previous counsel also failed to question Mr Yogaraj on what the accused had told Mr Yogaraj when the accused was with him in the room in the Commonwealth flat for about 45 minutes. According to the accused, the following was told to Mr Revi Shanker as to what he had said to Mr Yogaraj in the Commonwealth flat: ¹⁸⁸

124 When Mr Yogaraj was on the witness stand, Mr Revi Shanker was not present in Court. Mr Johan was the one who questioned Mr Yogaraj. Mr Johan did not ask Mr Yogaraj about it. Implied herein by the accused is a lack of coordination between Mr Johan and Mr Revi Shanker.

125 In the affidavits of Mr Johan and Mr Revi Shanker, they affirmed that they had advised the accused after going through the accused’s written instructions. The accused accepted their advice. The accused further told them to ignore all his written instructions and focus instead on his defence that he was supposed to, and expected to receive, one bundle of heroin, but instead three bundles were delivered, which the accused put inside a red pail of rice. This defence was led in his evidence-in-chief and was in accordance with the accused’s instructions. ¹⁸⁹

126 I pause to note that the accused confirmed during his cross-examination by Mr Johan that the “gist” of his defence as characterised by Mr Johan was that he expected to receive or collect one bundle but three came instead. Out of those three bundles, one was for the accused to repack and send to Toa Payoh and he was waiting for instructions in relation to the other two bundles. ¹⁹⁰ However, I wonder if the identity of the person who ordered the drugs and the identity of the person who was going to give further instructions to the accused on what to do with the other two bundles should also form a part of the “gist” of the accused’s defence, having regard to the fact that the accused had insisted during the ancillary hearing that Babu was that person. In any case, I note at this juncture that the accused admitted when he was cross-examined by Mr Revi Shanker that Mr Revi Shanker did not compromise his defence during the trial but the accused testified that Mr Revi Shanker wanted the accused to run his defence in a certain manner such as to exonerate Babu by saying that Babu was not involved. The accused said that that was not the truth, and that asking the accused to do something in favour of Babu was not Mr Revi Shanker’s “work” because Mr Revi Shanker, as counsel assigned to the accused, should have acted only in the accused’s interest. ¹⁹¹

127 When Mr Revi Shanker was cross-examined, it was put to Mr Revi Shanker that the accused had told him to follow the accused’s written instructions and that the accused never told him to ignore the accused’s written instructions. This was emphatically denied by Revi Shanker. ¹⁹² Both Mr Johan and Mr Revi Shanker reaffirmed in their oral evidence what they stated in their affidavits and were firm in their testimony that the accused told them to ignore all his written instructions during the lock-up meeting. ¹⁹³

128 I pause to note here that according to the evidence of the accused’s previous counsel, the accused’s instructions to ignore all of the accused’s written notes and focus on running his defence (ie, that he was supposed to receive only one bundle of drugs) were given orally to them at the lock-up meeting which took place soon after the accused was called to elect whether he wanted to give evidence in his own defence upon the close of the Prosecution’s case (ie, the standard allocution was administered). ¹⁹⁴ The accused elected to give evidence. The court then adjourned at 11.33 am on 3 April 2019 on the application of Mr Johan. The previous counsel asked for permission to see the accused which was granted. ¹⁹⁵ The lock-up meeting commenced at 11.45 am on 3 April 2019 according to the notes of the meeting taken by Mr Revi Shanker (see [114] above). Crucially the alleged instructions to ignore all the accused’s written notes were given towards the end of that lock-up meeting, which was immediately preceding the commencement of the accused’s evidence-in-chief at 2.30 pm on 3 April 2019. ¹⁹⁶ If true, this would be impactful on how the accused’s evidence-in-chief would be led.

129 Upon realising the implications of their emphatic evidence that the accused had asked them to ignore all his instructions just prior to giving his testimony, Mr Revi Shanker subsequently clarified that it was not that he ignored all the accused’s written notes or that whatever notes the accused had given to the previous counsel were not relevant. ¹⁹⁷

130 I pause again to note that the emphatic evidence of his previous counsel in their affidavits and oral testimony to ignore all the accused’s written instructions is directly contradicted by the minutes taken by Mr Revi Shanker of the lock-up meeting, which recorded:

This is important on the issue of credibility.

131 I pause again to observe that nothing in Mr Revi Shanker’s notes indicates or suggests that the accused had instructed his previous counsel to ignore all or any part of his written instructions.

132 Both of the previous counsel denied that they refused to take any of the accused instructions as alleged by the accused in his affidavit. They denied asking the accused to take responsibility for all the three bundles of drugs. They also denied having any improper engagement with Babu’s counsel or with the accused family members. They denied taking any instructions from Babu’s counsel. Mr Johan denied having communicated the accused’s defence with Mr Tiwary. Mr Revi Shanker also denied telling the accused to say that the CNB officers induced the accused to implicate the co-accused. Mr Revi Shanker denied telling the accused that Babu would say that only one bundle of drugs was ordered, and that Babu would get other witnesses to say that the additional two bundles of drugs were “extras” that were not to be trafficked in. The further allegations in paragraphs [24] and [88] above were also denied by previous counsel. The previous counsel maintained that the accused never told them that Babu’s counsel wanted to speak to the accused about assisting Babu or that Babu only wanted to be let off.

133 When asked whether he told the accused that he wanted to save Babu’s life as well, Mr Revi Shanker initially said he could not remember, ¹⁹⁸ and that he might have said it. ¹⁹⁹ However, Mr Revi Shanker eventually accepted, after some prevarication, that he did tell the accused that he wanted to save Babu’s life based on the audio recording and the transcript ²⁰⁰ of his conversation with Ms Kavitha and Ms Siroshini. ²⁰¹ Later in his evidence, Mr Revi Shanker was clear that he had previously told the accused that he wanted to save both the accused’s life and Babu’s life, and he had also told the accused again in the lock-up meeting that he wanted to save both the accused’s life and Babu’s life. ²⁰² Mr Revi Shanker sought to explain that it was his strong Christian belief that no life should be taken away and he wanted to save lives. He wanted to save both lives. But it did not mean that he would sacrifice the accused or compromise the accused’s defence or position to save Babu. ²⁰³ Mr Revi Shanker emphasised that they did run the defence of the accused in court and the accused’s defence was that he was supposed to receive only one bundle but he received three bundles. The accused did not know why there were two extra bundles and he did not know what to do with them. ²⁰⁴ The accused’s instructions were that it was Babu who had ordered the bundle. ²⁰⁵ Mr Revi Shanker agreed that he would have to prove that part of the accused’s instructions that Babu had ordered the drugs. ²⁰⁶

134 On the question whether Mr Revi Shanker had told the accused how he would save both the lives of both the accused and Babu, Mr Revi Shanker was adamant that he did not tell the accused how he would do it, in spite having had several meetings with the accused. Whereas in the audio recording, Mr Revi Shanker could be heard telling Ms Kavitha and Ms Siroshini how he would save both the accused’s and Babu’s lives despite after only meeting them once. ²⁰⁷

135 Mr Revi Shanker also accepted that Mr Tiwary had told him that he (ie, Mr Tiwary) wanted to bring Alan, the accused’s customer, as a witness if the accused were to implicate Babu as the one who ordered the drugs. ²⁰⁸ Whenever Mr Tiwary saw Mr Revi Shanker in court, Mr Tiwary would say: “This is what I will do. You know, I’m going to bring these people, you know”. ²⁰⁹ As it was of concern to both Mr Revi Shanker and Mr Johan, Mr Revi Shanker said that he conveyed Mr Tiwary’s message to the accused, ²¹⁰ and they needed basically to protect the accused’s defence. ²¹¹ Mr Tiwary gave an assurance that if the accused did not pinpoint or implicate Babu, then Mr Tiwary would not go after the accused. ²¹²

136 With respect to the handwritten statement of the accused, the previous counsel said that the accused wanted to know if Babu’s counsel would use the handwritten statement to cross-examine him. Mr Johan checked with Mr Tiwary. Mr Tiwary informed the previous counsel that he would not be using the handwritten statement to cross-examine the accused. Mr Johan conveyed that information to the accused. The accused was satisfied and had no complaints about it. They then checked with the accused whether Mr Tiwary could continue to act for Babu and the accused had no objections.

137 Mr Revi Shanker had asked the accused at the conclusion of the accused’s evidence-in-chief, whether he had anything to say or tell the court besides what he had testified to earlier on both days that he was giving his evidence-in-chief and the accused answered “No”. ²¹³ Further, the Prosecution witnesses were cross-examined by Mr Johan based on the accused’s instructions. At the conclusion of the cross-examination of each of the Prosecution witnesses, the accused was asked if there were any other questions to be asked and the accused did not express any reservations or complaints at that time.

138 At this juncture, it is pertinent to refer to the accused’s explanation. The accused explained in his evidence at the ancillary hearing that when he was asked if he had anything to say, he was at a loss. Many things were not asked although the accused had already brought those things to the attention of his previous counsel, but they were repeatedly dismissive of him. The accused felt so frustrated that he did not want to say anything else. So he just left it as that.

139 Mr Tiwary basically denied having engaged improperly with either Mr Johan or Mr Revi Shanker although he had spoken to them about the case. Mr Tiwary also asserted that Mr Revi Shanker and Mr Johan had not communicated ²¹⁴ or discussed ²¹⁵ the accused’s defence with Mr Tiwary.

140 Mr Tiwary said that he had never given any instructions (including instructions to speak to the family members of the accused) to the accused’s previous counsel. Mr Tiwary said he had not told them that his client, Babu, would give evidence to say that he ordered one bundle of drugs or that if the accused did not assist Babu, then Babu would call at least five witnesses to give evidence at the trial that the accused had ordered the three bundles of drugs. While Mr Tiwary claimed not to have told the accused’s previous counsel anything along those lines, he accepted that he had subpoenaed a number of witnesses (three in total) from Changi Prison for the accused to identify when the accused was being cross-examined by him. Mr Tiwary denied having asked the accused to let Babu off.

141 With regards to the meeting at the lock-up, Mr Tiwary said that Mr Revi Shanker told him that the accused wished to see him in the lock-up and Mr Tiwary said: “Okay. I will meet him in the lock-up with you and Johan privately.” ²¹⁶

142 Initially, Mr Tiwary said that he did not tell Mr Revi Shanker anything else. ²¹⁷ Then when I asked Mr Tiwary why he agreed so readily without even asking Mr Revi Shanker why the accused wanted to see him in the lock-up, Mr Tiwary corrected himself and said he did ask why, and Mr Revi Shanker told Mr Tiwary that the accused wanted to see him in the lock-up to find out what Babu’s defence was. ²¹⁸ I was puzzled why Mr Tiwary would even want to tell the accused so readily what Babu’s defence was because Mr Tiwary should simply cross-examine the accused without telling the accused what Babu’s defence was going to be. Mr Tiwary explained that he was prepared at that stage to be upfront about his cross-examination because he knew that he was going to ask him very difficult questions, put things to him and basically do his job as best as he could. Mr Tiwary did not want to do it in a cloak and dagger manner and he did not want to hold it back and spring the accused a surprise. ²¹⁹

143 Mr Tiwary recalled the lock-up meeting to be follows: ²²⁰

144 Mr Tiwary further told the accused that he would have to cross-examine him and prove that the accused was lying but he (ie, Mr Tiwary) could not go into details. ²²¹ The accused did not say anything in response to Mr Tiwary. Mr Tiwary then left the lock-up meeting, telling the accused, “You speak to your lawyers about this.” ²²²

145 According to Mr Tiwary, his purpose was actually to tell the accused what he (ie, Mr Tiwary) had to do and it was not something he enjoyed doing because he was damaging another person’s defence. ²²³ He wanted the accused to understand that it was not personal but that he was just doing his professional duty and that the accused’s lawyers could do “the similar thing” to Babu. ²²⁴

146 The DPP submits that the legal principles with respect to inadequate legal assistance from trial counsel have been set out by the Court of Appeal in Farid. Mr Johan and Mr Revi Shanker agree with the DPP.

147 The Court of Appeal held that a two-step approach should be adopted for assessing claims by the appellant of inadequate legal assistance raised against the appellant’s previous trial counsel when seeking to overturn an appeal against conviction. The first step is to assess counsel’s conduct of the case and the second step is to assess whether the conduct affected the outcome of the case, in that it resulted in a miscarriage of justice.

148 For the first step, the court held at [135] to [137] that:

150 The DPP submits that the above legal principles, and caution, laid down in the context of an appellant seeking to overturn his conviction on appeal are similarly applicable in cases such as this case, where the accused is now trying to rely on alleged inadequate legal assistance to: (a) be allowed to recall several Prosecution witnesses; and (b) have a “do-over” at giving evidence-in-chief in the main trial. ²²⁵

151 Mr Hassan and Ms Chitra in their submissions on behalf of the accused (hereafter referred to as the “accused’s submissions”) accept that the accused had to show that the conduct of Mr Johan and Mr Revi Shanker amounted to flagrant or egregious incompetence or indifference, or in other words, that their incompetence was stark and glaring. The accused submits that the evidence before the court shows that the conduct of the accused’s previous counsel had fallen below the objective standard of what a reasonable counsel would have done or would not have done within the meaning as set out in Farid, in the particular circumstances of the case. The accused submits that his previous counsel’s conduct can indeed be described as flagrant or egregious incompetence or indifference, and their incompetence was stark and glaring. ²²⁶

152 However, the accused submits that the second step appears to be irrelevant in the ancillary hearing as the present court has not made a “decision in the matter in order to demonstrate a case of miscarriage of justice”. ²²⁷

153 In the joint reply submissions of Mr Johan and Mr Revi Shanker, the previous counsel argue that if this second step is irrelevant then the accused could not say that there was inadequate legal assistance given to him. That is because a miscarriage of justice will have to be shown for the accused’s defence to have been affected. As the accused had admitted that the previous counsel did run his defence, there could not have been inadequate representation. ²²⁸

154 The DPP’s response to the accused’s submissions on this point is that the attempt to circumvent the second step entirely by asserting the irrelevance of the second step is based on a reading of Farid that is so narrow that it raises the question of what this entire exercise of a trial-within-a trial was for in the first place. ²²⁹ The DPP adds that at this stage of the trial, it is unclear what exactly the additional evidence-in-chief from the accused will be, or how it will be relevant to his defence. ²³⁰ According to the DPP, the accused is essentially asserting that inadequate representation by Farid’s standards, even if it did not impact the conduct of the case in court such as to result in any miscarriage of justice, is enough to allow him, “in the parlance of golf, to take a mulligan.” ²³¹ The DPP submits that either Farid is applicable in its entirely, or it is not. The second stage – an assessment of whether there was a miscarriage of justice – flows naturally from the findings of the court in the first stage. If there is no need to find a miscarriage of justice, then one must ask on what basis the accused is seeking a do-over of his evidence. ²³²

155 The DPP’s position is that in any trial, once the Prosecution and defence have closed their respective cases, that is usually the end of the evidence. The calling of any evidence or witnesses after the close of the case must be based on the interests of justice. Section 283(2) of the Criminal Procedure Code 2010 (2020 Rev Ed) (the “CPC”) clearly states that the court must summon and examine or recall and re-examine such a person if it thinks the person’s evidence is essential to making a just decision in the case. Flowing from this, inadequate legal assistance must give rise to a real possibility of a miscarriage of justice to ground such an application. ²³³ Without an assessment of how alleged inadequate representation impacts the prior conduct of the case, there is no reason for the court to reset the trial to an earlier stage and go through the whole of the evidence again from that point. ²³⁴ The DPP emphasises in any event that, as noted by the Court of Appeal in Farid at [135], legitimate and reasonable strategic or tactical decisions do not come within the very narrow class of cases where inadequate assistance of counsel can be said to have occurred. ²³⁵

156 The DPP submits that the accused has failed to particularise how exactly any of the previous counsel’s actions were starkly or glaringly incompetent, or had fallen outside of legitimate and reasonable strategic or tactical decisions. ²³⁶ Even if the accused’s previous counsel had indeed rendered inadequate legal assistance, the accused has failed to demonstrate how this has resulted in a real possibility of miscarriage of justice to him specifically or has adversely impacted his defence. ²³⁷

In this connection, the DPP submits that from the evidence in the ancillary hearing, the accused’s defence is clearly that he was only supposed to collect one bundle of drugs, but three bundles arrived. The DPP submits that the accused has conceded at para 36 of his submissions that his previous counsel ran precisely this defence at trial. In the circumstances, there exists no possibility of a miscarriage of justice in relation to his defence. Any concerns he might have about showing that Babu was involved in the transaction are irrelevant to his essential defence and, in any case, were clearly canvassed prior to the close of the Defence’s case. ²³⁸ The DPP urges the court to reject the accused’s application to recall some of the Prosecution witnesses, and to give further evidence-in-chief in the main trial. ²³⁹

157 The accused submits that there was ineffective communication between him and his previous counsel because of their approach and attitude, ²⁴⁰ which led to deficient legal services being rendered to him. ²⁴¹ The accused submits that when he was conveying his instructions to Mr Johan, Mr Johan would often throw tantrums and show his anger. Mr Johan would also threaten him. For example, Mr Johan threw a pen and said “[y]ou think you’re very smart? Then you defend yourself. You want to discharge me? Go ahead.” ²⁴²

158  The previous counsel’s response is that these allegations were not put to Mr Johan in cross-examination. ²⁴³

159  The accused submits that Mr Johan was also dismissive towards the accused. The accused wanted a document setting out the links in the call logs to be tendered into evidence. When the accused gave the document to Mr Johan, Mr Johan said that it was “rubbish”. ²⁴⁴

160 The previous counsel’s submission in reply was that the document setting out the links in the call logs were given to Mr Revi Shanker and not to Mr Johan. Mr Johan denied he had told the accused that it was “rubbish”. These allegations were similarly not put to his previous counsel during their cross-examination. ²⁴⁵ Further, the previous counsel submits that the accused had instructed his previous counsel at the lock-up meeting to ignore all his notes (which therefore included the document in question that he had given to them) and to fight on with his defence. ²⁴⁶

161 The accused submits that he felt more comfortable speaking to Mr Revi Shanker and he gave most of his instructions to him because Mr Revi Shanker could converse in Tamil and acted as the “peacemaker” between the accused and Mr Johan. Mr Revi Shanker would say, “Okay, just give me whatever you want me to do, I’ll look into it”. But when the accused subsequently asked Mr Revi Shanker about it, he would either ignore his question or state that it was not necessary without any explanation. ²⁴⁷

162  In the previous counsel’s reply submissions, these allegations are denied as the accused in his own evidence had stated that he met up with Mr Johan and not Mr Revi Shanker for most of the interviews. ²⁴⁸

163  When questioned on why he did not discharge his previous counsel if he was not satisfied with the legal services they provided, the accused replied that he was warned during a Pre-Trial conference that, “If you keep changing like this, we may not even end up assigning you a lawyer and [you] would have to do the case yourself.” ²⁴⁹ There were several changes of counsel (see [3] above) before Mr Johan and Mr Revi Shanker were appointed as the accused’s assigned counsel. Therefore, the accused submits that he was afraid that if he discharged his previous counsel, he would not be assigned any lawyers and he would be unrepresented in the capital case. ²⁵⁰

164 The previous counsel respond in their reply submissions that the accused’s fear was totally unfounded as the accused had on his own accord discharged Mr Rengarajoo after Mr Johan and Mr Revi Shanker had discharged themselves. This was before the accused was assigned his new counsel. ²⁵¹

165 The accused submits that because his previous counsel would often not attend the interviews with the accused together, instructions conveyed by the accused to one counsel, which must be communicated to the other counsel, were often not shared with the other counsel. ²⁵² The accused refers to the following cross-examination of Mr Johan: ²⁵³

166 The accused submits that this was far from satisfactory, if not unsatisfactory, and amounts to deficient legal services rendered. ²⁵⁴ What made it worse is that the previous counsel were going in different directions in terms of the accused’s defence: ²⁵⁵

167 The accused submits that he was advised in two directions. One would obviously undermine the other. Mr Revi Shanker allegedly did not inform Mr Johan about his direction of asking the accused to exonerate Babu. The accused submits that it is plain that the legal services rendered were deficient given the completely different directions that the two previous counsel were embarking on. ²⁵⁶

168 The previous counsel assert in their reply submissions that there were no different directions taken by them in conducting the cross-examination of the Prosecution witnesses and the evidence-in-chief of the accused. Both were conducted along the same lines, ie, the accused was supposed to receive one packet of drugs but three came instead. ²⁵⁷ No complaints were raised during the trial proper by the accused when he was giving his evidence-in-chief or when he was being cross-examined by Mr Tiwary. ²⁵⁸ No evidence was adduced in court to show that Mr Revi Shanker had asked the accused to exonerate Babu. The accused had already implicated Babu in his statements to the IO. ²⁵⁹ Mr Johan’s cross-examination of the Prosecution witnesses during the trial and the evidence-in-chief of the accused were synchronised. ²⁶⁰ Essentially, the submissions of the previous counsel are that the accused’s defence was not compromised in court because his previous counsel had run the accused’s defence in court as the accused instructed (as conceded by the accused in his submissions) ²⁶¹ and implicated Babu at the trial. ²⁶²

169  The accused further submits that his previous counsel were not interested in showing any background as to how and why the three bundles of drugs were found in the accused’s possession, which would in turn show that the accused was merely taking instructions from the mastermind, Babu. ²⁶³ The accused’s handwritten statement written on the instructions of Babu had a bearing on Babu’s role as the mastermind. ²⁶⁴ His previous counsel also failed to tender another document prepared by the accused showing links in the call logs (“call logs document”), which would show the extent of Babu’s involvement in drug trafficking activities. Not only did Mr Johan tell him that the call logs document he prepared was “rubbish”; when the accused instructed Mr Revi Shanker to tender the call logs document in evidence, Mr Revi Shanker said he would tender it during the accused’s evidence-in-chief but he failed to do so. ²⁶⁵ The previous counsel’s response in their reply submissions is that the accused had instructed them to ignore the document. ²⁶⁶

170 In so far as Mr Revi Shanker had asked the accused in court if he had anything else he wished to say during his evidence-in-chief (to which the accused had answered there was none), the accused submits that his previous counsel did not inform him that they would be asking such a question. Being unprepared for it and with no prior explanation as to what to expect during his evidence-in-chief, the accused would not have an in-depth understanding of the question. ²⁶⁷

171 The accused in his submissions sets out at length some of Mr Tiwary’s questions to show that the accused was consistently questioned on why certain matters were not mentioned in his statements. The accused said that he had informed the recording officers of those matters, but they did not record them down. He did not know why they were not recorded down or why his previous counsel did not cross-examine the recording officers accordingly. The cited portions of Mr Tiwary’s cross-examination of the accused are as follows:

172 Due to his previous counsel’s failure in asking the recording officers on their omissions in putting down what the accused had told them in his statements, the accused submits that the above is clear evidence of deficient legal services ²⁷² that had greatly affected the accused’s defence and credibility. ²⁷³

173 In response, the previous counsel submit that the new counsel did not lead evidence at this ancillary hearing to establish what were the inaccuracies with regard to the accused’s statements. No documents were admitted to show where the previous counsel had faltered with respect to the alleged inaccuracies of the accused’s statements. ²⁷⁴

174 Relying on the accused’s own version of events, the accused submits that it is completely inappropriate for his two previous counsel to have agreed to and arranged the meeting with Mr Tiwary in the lock-up at the High Court as their respective defences were “cut-throat” defences. ²⁷⁵ It was a last ditch effort by the previous counsel to persuade the accused to exonerate Babu. ²⁷⁶

175 The previous counsel submit, based on their version of events, that the meeting at the lock-up took place at the request of the accused and Mr Tiwary had corroborated this. ²⁷⁷ The accused’s instructions were that he wanted to know from Mr Tiwary what Babu was going to say. At the lock-up, the accused heard from Mr Tiwary that Babu was not going to support the accused’s defence. After Mr Tiwary left the lock-up, the accused thereafter told his previous counsel to fight on with the accused’s defence that he was supported to receive one bundle of drugs but instead three bundles came. ²⁷⁸

176 The accused submits that the previous counsel’s testimony that the lock-up meeting was arranged because the accused wanted to speak to Mr Tiwary to find out Babu’s defence is illogical. ²⁷⁹ There is no need for the accused to ask Mr Tiwary because the accused already knew what Babu’s defence was. ²⁸⁰

177 The accused’s submissions set out briefly the various versions from different witnesses of what transpired at the lock-up meeting:

(i) The accused’s version – Mr Tiwary had informed the accused not to implicate Babu. If he does not implicate Babu, Babu will then come to support the accused’s defence. ²⁸¹

(ii) Mr Johan’s version – Mr Tiwary did all the talking, saying that if the accused implicated Babu, he would cross-examine the accused and show that the accused was a liar. Thereafter, Mr Tiwary left. The accused told Mr Johan to fight on and to ignore all of his notes. ²⁸²

(iii) Mr Revi Shanker’s version – Mr Revi Shanker took attendance notes of the meeting. His attendance notes stated that the accused had asked Mr Tiwary what Babu’s defence was. Mr Tiwary replied that his client had nothing to do with the drugs; and if the accused implicated his client, he would cross-examine the accused to show that he is a liar. ²⁸³ In cross-examination, Mr Revi Shanker claimed that the accused told them to run his defence and that they had all his notes. ²⁸⁴ Mr Revi Shanker testified that after Mr Tiwary left, the accused said “Run my defence. You know all my notes, carry on”. ²⁸⁵

(iv) Mr Tiwary’s version – The accused did not say anything to Mr Tiwary. ²⁸⁶ He informed the accused of his client’s defence. Thereafter, he told the accused to speak to his lawyer and left. ²⁸⁷

178 In analysing which version of events is to be believed, the accused submits that at some point of time prior to the lock-up meeting, there was a discussion for the accused to exonerate Babu. If it were otherwise, there would be no point in Mr Tiwary telling the accused not to implicate Babu, which was just before the start of the accused’s evidence-in-chief, when at all material times the accused was going to implicate him. . ²⁸⁸ Why was there a need for Mr Tiwary to inform the accused that if (see [177] above) he did implicate Babu, he would cross-examine the accused to show that he is a liar? The accused submits that the word “if” suggests that there was an alternative, ie, for the accused to exonerate Babu. ²⁸⁹

179  Mr Johan’s version of events is that the accused had told them to ignore his notes and fight on. However, the accused submits that it is illogical for the accused to tell Mr Johan to ignore his written notes (given to his previous counsel as instructions) when there was no change in his defence. His written notes would be relevant to his defence. ²⁹⁰ Notably, the attendance notes recorded by Mr Revi Shanker omitted this crucial detail of an alleged instruction from the accused to ignore all of his written notes. ²⁹¹

180 The accused submits that it is more than likely that the said meeting was arranged to persuade the accused not to implicate Babu. ²⁹² If the versions of the previous counsel are to be believed, there is absolutely no need for the lock-up meeting as it would serve no purpose. The accused already knew what Babu’s defence was.

181 It is not disputed that Ms Siroshini had secretly recorded on her handphone a conversation between Mr Revi Shanker, Ms Kavitha and herself that took place in the office of Mr Revi Shanker on 1 April 2019, which was before the lock-up meeting on 3 April 2019. Although Ms Siroshini insisted based on her memory of the events that the recording was done after the lock-up meeting and the reason for her secretly recording the conversation was because of what had emanated from the lock-up meeting, that turned out to be untrue.

182 With events that occurred so long ago, I am not surprised that Ms Siroshini misremembered the date of the lock-up meeting and was confused on this part of her evidence. Fortunately, Ms Kavitha was able to testify confidently based on her handphone records that the meeting with Mr Revi Shanker took place on 1 April 2019. In my view, what is most important is not the accuracy of the actual date of the audio recording, but the contents of the audio recording of that meeting, which remain undisputed. Mr Revi Shanker, after considering the matter, rightly decided not to challenge the authenticity of the audio recording of what transpired at that meeting, although he took issue with the fact that it was recorded without his knowledge.

183  At my direction, the contents of the audio recording were transcribed and interpreted (where necessary) by the Supreme Court Interpreters’ Section.

184 The accused submits that the audio transcript clearly evidences grave misconduct on the part of Mr Revi Shanker (ie, amongst other things, in advising the accused not to implicate Babu when the accused’s instructions to his counsel were that Babu was involved in the drug transaction and that Babu – not the accused – had ordered the drugs from one “Boy”) amounting to deficient legal services being rendered to the accused. ²⁹³ In the transcript, the “Male Speaker” refers to Mr Revi Shanker. “Female Speaker 1” is Ms Kavitha and “Female Speaker 2” is Ms Siroshini. The parts highlighted in green refer to Mr Revi Shanker speaking on the mobile phone with Mr Johan separately, and the parts highlighted in yellow refer to the Female Speakers 1 and 2 speaking with each other while Mr Revi Shanker was still on his mobile phone talking to Mr Johan.

185 When Mr Hassan cross-examined Mr Johan, Mr Johan insisted that he was unaware of the conversation that Mr Revi Shanker had with Ms Kavitha and Ms Siroshini on 1 April 2019 before the secret audio recording surfaced and that Mr Revi Shanker never told him about it. ²⁹⁴ Based on this, the accused submits that he was advised by his two previous counsel in two different directions (one of which was Mr Revi Shanker’s advice to the accused not to implicate Babu in exchange for support from Babu, which Mr Johan claims he was completely ignorant of at all material times). ²⁹⁵ In these circumstances and given the transcript of the audio recording and the oral evidence, the accused submits that clear evidence has been shown of deficient legal services. ²⁹⁶

186 Mr Johan admitted in his testimony that the accused’s instructions to him were that the accused never ordered the drugs from “Boy”. ²⁹⁷ Yet in the audio recording, Mr Revi Shanker could be heard telling Ms Kavitha and Ms Siroshini that: “Eventually, he (ie, the accused) [is] going to die. If he now gonna cooperate, saying that yes, I ordered it from Boy, then Babu can support him”. ²⁹⁸

187 The accused submits that as early as 16 November 2016, the accused had informed another of his previous counsel, Mr Sunil, of the existence of the accused’s handwritten statement that the accused had given to Mr Tiwary. Mr Sunil testified that he had recorded in his own notes dated 16 November 2016 following a tele-visit that the accused had a copy of the handwritten statement that he gave to Mr Tiwary. ²⁹⁹

188 Mr Sunil said that the accused had not told him that he wanted this handwritten statement admitted in court as they did not get that far in the instructions. ³⁰⁰ Mr Sunil also could not remember any explicit instruction from the accused to have his written statement admitted as evidence. ³⁰¹

189 Upon reviewing his file and based on his notes, Mr Sunil testified that the accused was trying “to flush out Babu”. ³⁰² The accused told Mr Sunil that Babu played him out, and that Babu was the controlling mind behind the handwritten statement and persuaded the accused person to write it. ³⁰³ This handwritten statement basically exonerated Babu completely of the offence.

190 The accused submits that he wanted to rely on the handwritten statement to show that Babu was the mastermind; and that he was coerced by Babu into making the handwritten statement in order to exonerate him (ie, Babu). That was why the accused had informed Mr Sunil that he wanted to “flush out Babu”. ³⁰⁴ The accused wanted the handwritten statement to be admitted as evidence. ³⁰⁵

191 When asked why he had discharged himself from acting for the accused on 4 May 2017, Mr Sunil explained as follows:

192 Mr Sunil read out the following from his notes taken on 29 April 2017 and said that he would have needed to cross-examine Mr Tiwary on (a) why Mr Tiwary was seeing the accused ³⁰⁸ when the accused was not represented; ³⁰⁹ (b) Mr Tiwary’s involvement in obtaining the handwritten statement exonerating Babu from the accused; ³¹⁰ and (c) the circumstances that led to the statement being written by the accused ³¹¹ on the instigation of Babu and based on information fed to the accused by Babu: ³¹²

193 The accused refers to the following portions of the notes of evidence to submit that at the material time, he wanted his handwritten statement to be admitted into evidence given the nature of his discussions with Mr Sunil that led eventually to Mr Sunil applying to discharge himself: ³¹⁵

194 The accused submits that he had maintained the same position with his previous counsel (ie, Mr Johan and Mr Revi Shanker) in wanting the handwritten statement admitted into evidence, but his previous counsel failed to follow his instructions to do so. ³¹⁷ The accused submits that Mr Johan’s evidence that the accused did not instruct Mr Johan to admit the handwritten statement in evidence is not believable. The accused submits that he wanted the handwritten statement admitted in court to show that he had written the statement on the instructions of Babu and in that way, he sought to show that Babu was the mastermind and that he had been acting on Babu’s instructions on the day of his arrest. ³¹⁸

195 On the other hand, the previous counsel submit that no instructions were given by the accused to admit his handwritten statement. ³¹⁹

196 Mr Johan testified that the accused just told him that he had given a statement to Mr Tiwary and that was all. ³²⁰ Mr Johan said that the accused did not instruct him to admit the handwritten statement and was in fact happy that neither the Prosecution nor Mr Tiwary would be relying on it. ³²¹

197 The previous counsel submit that after Mr Johan had confirmed with the Prosecution and Mr Tiwary that they did not intend to use the handwritten statement, it became a “non-issue or non-starter”. ³²²

198 According to Mr Johan, he had told the accused: “Don’t put it (ie, the handwritten statement) in”. ³²³ However, it is unclear whether the accused had in fact first asked Mr Johan to put it in, but Mr Johan advised him against it. The previous counsel contend that the accused was advised on the implication of admitting the handwritten statement and that the accused was “happy with it” because Mr Tiwary was not using the handwritten statement. ³²⁴ If the accused had insisted on using his handwritten statement, Mr Johan said he would “know what to do” (ie, discharge himself) but he did not tell the accused that. ³²⁵ In the end, the handwritten statement was not adduced in evidence.

199 The previous counsel submit that if admitting the accused’s handwritten statement as evidence was so important to the accused, it is curious why the accused did not raise it during his evidence-in-chief. They highlight that when Mr Revi Shanker had asked the accused whether he had anything else to say at the conclusion of the accused’s examination-in-chief, the accused said no. ³²⁶

200 The previous counsel submit that the accused had not given any instructions to incorporate Babu’s statement into the Agreed Bundle. ³²⁷ Furthermore, the previous counsel said they did not have a say on incorporating Babu’s statement into the Agreed Bundle. ³²⁸ The question should be directed to the co-accused’s counsel and the Prosecution.

201 The accused submits that in all the circumstances, the previous counsel had rendered deficient legal services by ignoring the accused’s instructions and not rendering proper legal advice. They were simply indifferent towards the accused. ³²⁹ In conclusion, the accused submits that the deficient legal services were interlinked and cover a wide range, including the lack of proper communication with the accused, a failure to take the accused’s many instructions and advising the accused on running two inconsistent defences. An aggravating factor is the severity of the charge the accused was facing. ³³⁰ The undisputed audio recordings and its transcript are self-explanatory and represent plain and clear evidence of deficient legal services rendered by the previous counsel. ³³¹ Both previous counsel were equally responsible for the deficient legal services given their roles as lead counsel and assisting counsel then acting for the accused. ³³² They were liable jointly and severally and vicariously according to the accused. ³³³

202 In response, the previous counsel both jointly submit that the allegations of the accused are baseless and were afterthoughts that arose when, amongst other things, Babu’s charge was reduced to trafficking in not less than 9.99 grams of diamorphine (which Babu accepted), whereas the offer to the accused by the Prosecution was to charge the accused for trafficking in not less than 14.99 grams of diamorphine. ³³⁴ The previous counsel submit that the accused was essentially unhappy that the Prosecution did not give him an offer to plead guilty to the same reduced trafficking charge as Babu. ³³⁵

203 After evaluating the testimonies of the various witnesses in the long ancillary hearing (which I have set out in detail in this judgment) and after considering the submissions of the various parties (which I have also set out in detail in this judgment), I now make my findings and explain my decision to allow the accused to recall certain Prosecution witnesses for further cross-examination, to give further evidence-in-chief and to call additional witnesses (if any) to testify in his defence.

204 I do not agree that (a) the legal principles and the legal standards as set out in Farid with regards to establishing inadequate legal assistance as a ground of appeal; and (b) the two-step approach for assessing claims by an appellant of inadequate legal assistance when seeking to overturn an appeal against conviction, are applicable to a situation of an on-going trial, where no decision has yet been rendered by the trial court. Understandably, there will have to be a relatively high threshold when seeking to overturn a trial court’s decision as in Farid. But I do not think that the same high threshold should similarly be imposed on the accused. Unlike the case of Farid, the accused here is not seeking to overturn his conviction. He is still in the process of adducing evidence in support of his defence at the trial. His case has not closed yet.

205 At trial, the situation is frequently very fluid. Not every situation can be anticipated. There can be many genuine reasons why a party may apply to recall witnesses. I will give some examples:

(a) Counsel may have forgotten to deal with certain evidence and later realises that he needs to recall certain witnesses to deal with them.

(b) An accused person may not realise or appreciate the relevance of certain evidence until much later. He then discloses them to counsel after his testimony is over. His counsel may decide to recall witnesses or the accused to testify.

(c) Upon reviewing the case afresh, new counsel appointed may decide to adopt a different defence strategy, which then requires a different set of facts to be adduced as evidence.

(d) At trial, unexpected evidence may suddenly be uncovered. Witnesses may have to be recalled in relation to such evidence.

(e) Despite best efforts, counsel may not have fully taken all relevant instructions. After taking further instructions, gaps in the evidence may later be discovered, requiring a recall of witnesses.

(f) There is also the possibility of deficient or inadequate legal representation resulting in instructions not being followed and relevant evidence being omitted.

(g) Errors in earlier evidence may later be discovered, which would require witnesses to be recalled for clarification and correction of those errors.

(h) Witnesses may have to be recalled to elaborate on and clarify aspects of their evidence which appear to be inaccurate as a result of the testimony of other witnesses.

206 Certainly, when counsel and the accused work together to engineer a false reason grounded on false facts in order to justify a recall of a witness or witnesses, it will amount to an abuse of process and the application for recall should be disallowed. That is quite apart from other consequences that may follow. But I do not think that there should be an extensive ancillary hearing (as has happened in the present case) each and every time to ascertain the truth of those reasons just to be absolutely sure that they are genuine. I do not think it is necessary to do so. It is for the trial judge to probe and assess the situation. Unless there are good reasons to suspect that the reasons provided are untrue and therefore that the applicant may be abusing the process of the court, the trial judge may proceed to allow the application pursuant to s 283 of the CPC if he thinks that the evidence proposed to be adduced through the recalled witnesses is relevant. The principal governing question is therefore whether the evidence to be adduced through the recalled witnesses is going to be relevant. There is no necessity for the applicant to prove at this stage that the evidence will definitely be relevant. It is sufficient that the applicant through his counsel explains the gist of the evidence that will be led to satisfy the court that the evidence, if led by recalling the witness, has some relevance to the issues at the trial. If it actually turns out that the evidence given is not relevant, no harm is caused as the court, when finally deciding on the matter at the conclusion of the trial, can simply ignore that irrelevant evidence. It must be recognised that before the whole case is over, the court may not always be able to know for certain whether the further evidence proposed to be adduced is relevant or not. In the early stages of the trial and before the accused has given his defence, it may not always be clear what is going to be relevant. Under these circumstances, it may be better to err on the side of caution, rely on counsel’s good judgment that it is relevant, and allow the further evidence to be given first since the court is unsure of its relevance. If irrelevant, the further evidence can simply be disregarded when the court is making its decision. The only downside is that some extra time would inevitably be expended for the hearing. But the risk of injustice or a mistrial will be minimised. It is preferable to adopt a flexible and pragmatic approach which best ensures a fair trial so that relevant admissible evidence is not inadvertently shut out of the trial.

207 I note in this case that the accused’s complaints surfaced suddenly whilst the accused was being cross-examined by Mr Tiwary. He was unrepresented at that time. When Mr Hassan and Ms Chitra, his new counsel, were able to obtain instructions from the accused, it was after the completion of his cross-examination. His re-examination had not started. The accused’s case had not closed. Neither did Mr Hassan delay informing the court that the accused had certain complaints against his previous counsel. Mr Hassan wanted to recall certain witnesses of the Prosecution for further cross-examination and have the accused give further evidence-in-chief to admit into evidence, amongst other things, his handwritten statement. Due to the DPP’s objections on the basis of Farid, a long ancillary hearing ensued.

208 I will now deal with the factual evidence adduced at the ancillary hearing.

209 I find it difficult to decide which of the two versions is closer to the truth: the accused’s version that his previous counsel failed to follow his instructions to admit his handwritten statement or the previous counsel’s version that no such instructions were given.

210 The handwritten statement given by the accused to Mr Tiwary which states that Babu was innocent, and that the accused was induced and threatened by the CNB officers to falsely implicate Babu is, in my opinion, likely to be made at the behest of Babu based on what Babu told the accused to write. I note of course that no one called Babu as a witness to give his version of the events in this ancillary hearing. However, given the available evidence before me, I believe the accused on this point.

211 What is clear to me is that the accused had a lot of discussions, and perhaps even arguments, with his previous counsel on what is to be done with the handwritten statement. Those discussions probably revolved around whether the handwritten statement should be admitted or not. I am inclined to believe that after the DPP and Mr Tiwary confirmed that they were not using the handwritten statement, the accused was probably persuaded eventually by his previous counsel not to admit the handwritten statement, although the accused initially wanted his handwritten statement to be admitted into evidence.

212 Since then, unforeseen developments have arisen. The Prosecution called the co-accused, Babu, as a rebuttal witness in the main trial after Babu pleaded guilty mid-way though the joint trial. ³³⁶ Babu testified that after he ordered three packets of drugs from Boy, Babu informed the accused of the number of packets he had ordered ³³⁷ so that the accused could check the quantity when the accused collected the drugs on his behalf. ³³⁸ Babu ordered three packets because he had customers (later clarified to be one Alan) waiting for three packets. ³³⁹ Babu said that the accused was supposed to collect three packets. ³⁴⁰ The accused subsequently called Babu to say that he had collected three packets. ³⁴¹

213 Clearly, Babu’s evidence, if accepted, will completely demolish the accused’s defence that he only expected one bundle to arrive (see [62] above) (the “one bundle defence”).

214 After Babu had completed his evidence-in-chief, Mr Hassan informed me that he was not ready to cross-examine Babu and to date, Babu’s cross-examination has not begun.

215 In my view, even if the accused’s handwritten statement may not have been particularly relevant to the defence prior to Babu being called as a rebuttal witness, now that Babu has given very incriminating evidence against the accused by directly contradicting the accused’s one bundle defence, I am of the view that (a) the accused’s handwritten statement being penned at the behest of Babu and written in the way that Babu wanted; and (b) the evidence of various steps taken by Babu to persuade the accused to lie and exonerate him, have become crucially relevant to the accused’s overall defence to show not only a lack of credibility on the part of Babu but also that Babu had even tried to suborn the accused, who is no doubt an important witness at the joint trial. Furthermore, the fact that Babu failed to stop the accused from incriminating him may lead to a line of cross-examination by the accused’s new counsel on Babu’s credibility, and importantly on whether Babu is now lying in his evidence to exact revenge on the accused for refusing to co-operate and exonerate him. To disallow the admission of the accused’s handwritten statement as well as evidence of the circumstances leading to the creation of that handwritten statement will, in my view, prejudice the accused’s defence as Mr Hassan will be impeded in his cross-examination of Babu to rebut Babu’s incriminating evidence against the accused.

216 As a point of principle and in fairness, a trial court should allow all evidence which it thinks is relevant to making a just decision, especially evidence which is material in nature, to be admitted into evidence, even if this has to be done by way of a recall of witnesses (including the accused) very late during the trial stage. This is in any event allowed (and even mandated where the evidence is essential to making a just decision) under s 283 of the CPC, which states as follows:

217 In my view, it will not be conducive to making a just decision on the unusual facts of this case to refuse Mr Hassan’s application to recall the accused to give further evidence-in-chief of the events leading to the creation of the accused’s handwritten statement and to admit the accused’s handwritten statement for the purposes of the main trial. Further, it will also not be conducive to making a just decision to disallow the accused from giving further evidence-in-chief of all the other various measures taken by Babu (one of which I set out below at [218] to [221]) to induce and pressure the accused to exonerate him at the trial. The accused’s evidence-in-chief of those measures taken by Babu will provide an evidential basis for Babu’s cross-examination later on, especially on Babu’s reliability as a rebuttal witness and on whether Babu is now giving false evidence to destroy the accused’s one bundle defence out of vengeance because the accused had given evidence at the main trial incriminating him as the one who ordered the drugs. The above evidence proposed by Mr Hassan to be adduced through the recall of certain witnesses appear to be highly relevant to the accused’s case and should be allowed into evidence as part of the main trial.

218 One of those measures taken by Babu to pressure the accused to exonerate him at the trial appears to be instructing Mr Bachoo Mohan (via intermediaries) and paying his fees for him to interview the accused with a view to representing the accused if he should agree to exonerate Babu at the trial. ³⁴² The accused obviously could not afford to pay the fees. I do note that the accused had to be provided with assigned counsel all along whereas Babu could afford to have Mr Tiwary as his briefed counsel. It is clear to me who has the financial means to engage Mr Bachoo Mohan.

219 The accused first made a written request on 9 April 2015 for an interview with Mr Bachoo Mohan ³⁴³ on the instructions of Babu. The accused made a second request on 16 February 2016. ³⁴⁴ On 9 March 2016, Mr Bachoo Mohan wrote to the accused that his firm required a non-refundable payment of his fee before they would be able to despatch a lawyer to interview him and requested that he instruct a relative or a friend to attend at their office to make payment for their fees. ³⁴⁵ An Indian lady turned up at the office without prior appointment and subsequently paid $1000. ³⁴⁶ An invoice dated 9 April 2016 which was addressed to one Mdm Theresa Ragasvari D/O Anthony (“Mdm Theresa”) ³⁴⁷ was prepared for her. It stated that the agreed professional fees were $1,000 for the interview and taking of initial instructions. Mr Bachoo Mohan ascertained the Indian lady’s identity and address from her identity card. ³⁴⁸

220 However, Mr Baboo Mohan could not enlighten the court on who this Indian lady is related to. After Mr Hassan told the court that the accused knows who she is, I allowed the accused to be recalled on this. The accused testified that the Indian lady, Mdm Theresa, is known to him. ³⁴⁹ She used to work at the accused’s mother’s place and was a casual friend of his mother. His mother and Mdm Theresa worked as cleaners. Babu knew Mdm Theresa’s husband as they used to work together. Babu was familiar with her though her husband. ³⁵⁰ The accused had gone previously with Babu to visit Mdm Theresa and they got to know each other well. She was very close to Babu. ³⁵¹ If Babu had not brought the accused to Mdm Theresa’s place, a one-bedroom rental flat, he would not have known where Mdm Theresa stayed. ³⁵² According to the accused, the last time he visited Mdm Theresa was sometime in 2013. ³⁵³

221 The accused had given evidence that neither he nor his relatives paid Mr Bachoo Mohan to interview him. It was Babu who arranged for Mr Bachoo Mohan to see the accused. I note again that no one called Babu or Mdm Theresa to give evidence at the ancillary hearing. But based on the available evidence before me, I find that Babu had likely arranged for Mdm Theresa to procure the services of Mr Bahoo Mohan to interview the accused with a view to act for the accused on the condition that the accused was agreeable to exonerate Babu at the joint trial.

222 This step taken of engaging Mr Bachoo Mohan to interview the accused also fits the accused’s narrative that Babu had been using all kinds of methods (and the accused had given extensive evidence of them) to induce and pressure the accused to exonerate him at the joint trial; getting briefed counsel to act for the accused is just another one of those measures.

223 Both Mr Johan and Mr Revi Shanker were emphatic in their evidence that the accused told them not to follow his written instructions at the end of the lock-up meeting. However, Mr Revi Shanker’s own written notes at the lock-up meeting contradict that, stating: “Hari told us to follow his instruction in respect of his defence.” (see [114] and [130] above). The accused denied that he told his previous counsel to ignore his written notes.

224 I believe the accused that he had never told his previous counsel to ignore his written notes. If indeed his previous counsel misheard the accused instructing them to ignore his written notes, then there is a real possibility of prejudice to the conduct of the accused’s defence.

225 There is clear evidence in support of my finding that the accused had difficulty communicating his instructions to Mr Johan, his lead counsel.

226 In the audio recording, Mr Revi Shanker could be heard telling Ms Kavitha and Ms Siroshini that the accused and Mr Johan could not get along, ³⁵⁴ and that they were always fighting. ³⁵⁵

227 On Mr Johan’s personality, Mr Revi Shanker agreed that Mr Johan sometimes could be very vocal and would lose his temper with the accused, resulting in Mr Revi Shanker seeing the accused without Mr Johan on occasions, (which, in my view, may have led to other possible problems of a lack of co-ordination between the lead and assisting counsel): ³⁵⁶

228 During the ancillary hearing, the accused unsurprisingly expressed his confusion and the frustrations that he felt when giving his instructions to Mr Johan. When Mr Johan cross-examined the accused on whether he and Mr Revi Shanker were logical in their advice to him, he disagreed that they were logical and said: ³⁵⁷

229 I believe the accused that despite his difficulties in giving his instructions to Mr Johan, he was afraid to discharge Mr Johan and Mr Revi Shanker because he already had numerous changes of counsel. He was worried that he might end up having to represent himself in the capital trial. However, it turns out that it was Mr Johan and Mr Revi Shanker who discharged themselves from acting for the accused whilst the accused was in the midst of being cross-examined by Mr Tiwary.

230 In my view, the accused’s difficulties in communicating his instructions to Mr Johan (which he expected Mr Johan to follow), whether these difficulties were due to (a) a personality clash; (b) overbearing conduct on Mr Johan’s part; (c) Mr Johan’s dismissive attitude towards the accused with regard to what the accused wanted to be done; or (d) Mr Johan’s insistence that the accused must always listen to him as he is the accused’s lawyer, are indeed a genuine cause for concern. In light of the frequent fights and arguments between the accused and Mr Johan when the accused was giving his instructions to Mr Johan, there is a real risk of the accused being intimidated and inhibited when giving his instructions. This is another reason why I am allowing the application of Mr Hassan to recall certain Prosecution witnesses, who were earlier cross-examined by Mr Johan. Hopefully, this will be sufficient to remedy the situation and avoid the risk of injustice to the accused in this ongoing trial.

231 I believe the accused that he suffered from depression at the material time and was taking medication. His depression was precipitated by the news he received that his girlfriend was having an affair.

232 With the accused’s depression, it is not surprising that he was not in the right frame of mind. That affected how he conducted himself, for instance: (a) in changing his position a few times on who in fact ordered the drugs, which may have an impact on his credibility generally and perhaps also on whether the court will believe his one bundle defence; and (b) in making a handwritten statement which was not true and which exonerated Babu completely based on what Babu had told him to say, and handing that handwritten statement over to Mr Tiwary.

233 Some leeway must therefore be given to the accused because the accused might not have had the opportunity to instruct his counsel properly and comprehensively at the material time, given his depression and the pressures he was labouring under.

234 Therefore, if new counsel for the accused apply for a recall of the accused and certain Prosecution witnesses to cover areas which were not previously canvassed during the main trial, I will be slow to refuse the new counsel’s application. I cannot see any abuse of the court’s process if the application for recall is allowed under the circumstances. Rather it would be an injustice and a prejudice occasioned to the accused at trial if the new counsel’s application for recall is denied.

235 In the audio recording (which has been transcribed and translated as parts of the conversation were in Tamil and Malay), Mr Revi Shanker can be heard telling Ms Kavitha and Ms Siroshini that if the accused cooperates by saying that the accused ordered the drugs from “Boy”, then Babu can support the accused. ³⁵⁸ Further Mr Revi Shanker explains that what Mr Tiwary is trying to say is that they can “support” the accused on the accused’s defence of one “batu” (ie, one bundle). ³⁵⁹ Mr Tiwary does not want the accused to say that Babu is the one who ordered the drugs. ³⁶⁰ Mr Revi Shanker says that if the accused implicates or “pinpoint[s]” Babu, Babu and Mr Tiwary are going to bring five witnesses who are both the accused’s and Babu’s friends ³⁶¹ to testify against the accused and “kill” the accused, and that the accused will “die”. ³⁶² Mr Revi Shanker reiterates at a later part of the conversation that Mr Tiwary is going to bring five witnesses. ³⁶³ Mr Revi Shanker also states that even though Babu had links with Boy (the supplier in Malaysia), the accused also occasionally ordered from Boy directly. ³⁶⁴ Mr Revi Shanker tells Ms Kavitha and Ms Siroshini: “They [presumably referring to Babu and Mr Tiwary] want to bring evidence, you know or not? Somebody will tell he (ie, the accused) also have ordered directly from Boy and jockey (ie, the courier from Malaysia to Singapore) have passed to him (ie, the accused).” ³⁶⁵

236 Mr Revi Shanker says that unless both the accused and Babu want to help each other, both of them will “go down” (ie, both the accused and Babu will be convicted of the capital charge). ³⁶⁶ Mr Revi Shanker then says: “So, if both of them [ie, the accused and Babu] want to agree on going on one [bundle of drugs] ah, [Babu] can support [the accused on this defence], and [Mr Tiwary] can bring people [ie, witnesses] who can support [the accused].” ³⁶⁷ Mr Revi Shanker essentially elaborates that under this defence, of the three bundles of drugs, two bundles were supposed to be given back to the supplier and were not intended for trafficking. This will in turn mean that the offence will be one of possession, and the trafficking amount will be reduced to one bundle, with no death penalty involved. ³⁶⁸ Mr Revi Shanker says that if the “one packet theory” happens to work out, the accused will escape the death penalty. ³⁶⁹ Mr Revi Shanker emphasises: “We want to save both lives. I also must save---see I also must save---I also must save Babu. Both.” He goes on to state: “Two, you see, two lives to save. Not enough just to save one life, cannot just say save one life, isn’t that wrong? It’s wrong. For me, both lives must be saved.” ³⁷⁰ Mr Revi Shanker then says that that is his thinking, but the problem is that the accused is not thinking in the same way because he is angry with Babu. ³⁷¹

237 When Ms Siroshini protests that the accused cannot trust Babu in relation to working together on the defence that only one bundle was meant to be trafficked, since Babu has denied his involvement and is not going to “work for the one [bundle]”, ³⁷² Mr Revi Shanker says: ³⁷³

238 Ms Siroshini then asks whether Mr Revi Shanker and Mr Tiwary are going to fight the case on the basis that only one bundle was meant to be trafficked. ³⁷⁴ Mr Revi Shanker assures her: “I’m definitely---we’re fighting one book (ie, one bundle).” ³⁷⁵ Mr Revi Shanker then goes on to say: ³⁷⁶

239 Mr Revi Shanker also reveals that Mr Tiwary had already told him many times that Mr Tiwary would “kill” the accused if the accused implicates Babu, and would “help” the accused if the accused “support[s]” Babu: ³⁷⁷

240 Mr Revi Shanker then follows by saying that if the accused goes into the witness box, he must testify that one bundle was ordered from Boy directly (ie, Babu did not do the ordering). ³⁷⁸

241 Ms Kavita then informs Mr Revi Shanker that if Mr Revi Shanker really wanted, she will try to see the accused and talk things out with him, to which Mr Revi Shanker replies that Ms Kavita cannot come to court the next day if Ms Kavita is still contemplating becoming a witness for the accused. ³⁷⁹ I note that Mr Revi Shanker does not dissuade Ms Kavita from talking to the accused to convince him to say that he ordered the drugs from Boy directly, without the involvement of Babu.

242 Mid-way through the conversation with Ms Kavitha and Ms Siroshini, Mr Revi Shanker takes a mobile call from Mr Johan. In that call, Mr Revi Shanker can be heard telling Mr Johan ³⁸⁰ :

243 Mr Revi Shanker then tells Mr Johan that he is presently speaking with Ms Kavitha. ³⁸¹

244 Later, Mr Revi Shanker re-assures Ms Kavitha that Mr Tiwary had assured Mr Revi Shanker that Mr Tiwary and Babu will never ‘play out’ the accused, if the accused admits that he (and not Babu) was the one who had ordered one bundle of drugs: ³⁸²

245 Mr Revi Shanker mentions in a later part of the conversation that the problem is what those two extra bundles were for. ³⁸³ He says that some people need to come forward to say that those extra bundles were not supposed to go to the accused. ³⁸⁴ Ms Kavitha asks who is going to come forward to say that. ³⁸⁵ Mr Revi Shanker, referring to Babu’s “game plan”, replies: “That is why. Now, it is because of that, now, there are people to tell.” (likely referring to the witnesses that Mr Tiwary intended to call in support of the accused). ³⁸⁶

246 Mr Revi Shanker then tells the two ladies: “oh, tell him [ie, the accused] to tell. Why do I have to tell? Tell him to tell. That it is he [ie, the accused] who placed an order for one batu [ie, one bundle].” ³⁸⁷

247 Mr Revi Shanker reminds the two ladies that Babu will not be compromising his position that he is not involved in the offence and that he did not order the drugs from “Boy”. Mr Revi Shanker agrees with Ms Kavitha that Babu is smart, having had a prior trafficking record, and states that Babu would therefore “play his game well”. ³⁸⁸ Mr Revi Shanker reiterates that: ³⁸⁹

248 Ms Kavitha then asks whether the accused knows what is going to happen if he implicates Babu in his evidence. Mr Revi Shanker replies that he had told the accused about it: ³⁹⁰

249 Ms Shiroshini asks Mr Revi Shanker for his help to let her talk to the accused in Supreme Court 4C the next morning on 2 April 2019, which was the date scheduled for the next tranche of the hearing. Mr Revi Shanker agrees. ³⁹¹ Ms Kavitha wonders whether she should come and whether the accused will listen to her. Ms Siroshini says that Ms Kavitha can help to talk to the accused, and he may “listen to her for the one book” (ie, one bundle). Ms Kavitha is unsure if there will be enough time for her to convince the accused, to which Mr Revi Shanker says that they can talk to the accused for ten minutes. ³⁹²

250 Mr Revi Shanker says that when the accused comes tomorrow to court, he will talk to the accused first. He suggests that Ms Kavitha could go and apply for leave the next day to talk to the accused and “see how one more time”. ³⁹³ Ms Siroshini says that she will go with Mr Revi Shanker and talk to the accused. ³⁹⁴ Mr Revi Shanker says: “Talk to him, then if possible maybe come the following day, see what happens and then check with him. Until and when he don’t go to the stand, , [sic] think we are still okay.” ³⁹⁵

251 On the question of who ordered the one bundle, Mr Revi Shanker says: ³⁹⁶

252 Finally, Mr Revi Shanker agrees with Ms Kavitha that they should try to talk to the accused: ³⁹⁷

253 As to what will happen if they manage to persuade the accused (ie, to testify at the joint trial that the accused directly ordered only one bundle from Boy but three bundles were delivered to the accused by mistake), Mr Revi Shanker says to let him talk to Mr Tiwary: ³⁹⁸

254 However, at para 27 of Mr Johan’s affidavit, he states: “We never asked the accused to say that the co-accused [ie, Babu] was not involved”. At para 25 of Mr Revi Shanker’s affidavit, he states that he agrees with para 27 of Mr Johan’s affidavit.

255 Having regard to the portions of the transcript of the audio recording that I have set out in detail above, it is apparent that paras 25 and 27 of Mr Johan’s and Mr Revi Shanker’s affidavits are untrue. I believe the accused’s version of events that the accused was asked not to implicate Babu.

256 I accept the submission of the accused that the undisputed audio transcripts evidence grave misconduct on the part of Mr Revi Shanker in advising the accused (quite inappropriately in my view) not to implicate Babu in order to save both the accused’s and Babu’s lives when the accused’s clear instructions were that Babu was involved in the drug transaction and that it was Babu who ordered the drugs from “Boy”. The audio transcripts essentially provide strong corroboration of the accused’s testimony that Mr Revi Shanker had told him not to implicate Babu.

257  I note that Mr Tiwary had arranged for some inmates from prison to be identified by the accused when he was under cross-examination by Mr Tiwary. Could these be the persons which Mr Tiwary intended to call to “support” the accused if the accused exonerated Babu or to “whack” the accused if the accused incriminated Babu, as referred to by Mr Revi Shanker in the portion of the audio transcript reproduced at [247] above?

258 As the accused stood firm on his instructions, Mr Revi Shanker failed in his attempt to persuade the accused to adopt his trial strategy to save both the accused’s and Babu’s lives. That strategy involved the accused completely exonerating Babu through the accused’s evidence in exchange for the accused obtaining evidential support from witnesses to be called by Mr Tiwary for the accused’s defence that he ordered only one bundle from Boy. Mr Revi Shanker then led evidence-in-chief from the accused at the joint trial, which was along the lines of the accused’s defence, ie, that the accused had an expectation of receiving only one bundle of drugs, but three bundles were delivered instead, and that Babu had told the accused that he ordered “a packet of heroin” and the accused was to collect that heroin for him ³⁹⁹ .

259 On balance, I also believe the accused that Mr Revi Shanker had suggested to him to say that the CNB officers had induced him to implicate Babu in his statements to the CNB officers, which the accused said was untrue and was not his instructions to his previous counsel.

260 What is more important is whether there is any adverse impact resulting from the advice and suggestions which the accused has proved on a balance of probability to have been made to him by Mr Revi Shanker, which will make it necessary for the accused, now represented by new counsel, to (a) be given an opportunity to recall certain Prosecution witnesses for further cross-examination; and (b) be allowed another opportunity to give further evidence-in-chief on matters that were not alluded to previously by him in his evidence-in-chief led by Mr Revi Shanker.

261 In my view, this has not directly impacted the accused’s defence because the accused had declined to follow Mr Revi Shanker’s advice and trial strategy of exonerating Babu and saving both the accused’s and Babu’s lives. However, I find that what Mr Revi Shanker did, not only added to those pressures exerted on the accused by Babu, but also affected the accused mentally and compounded the difficulties the accused faced in giving his instructions fully and properly to his previous counsel. It will be difficult to determine (and I do not wish to do so) what exactly was omitted in the cross-examination of the Prosecution witnesses and/or the accused’s evidence-in-chief, or what was not carried out by the accused’s previous counsel based on the many instructions of the accused given to his previous counsel over a long period of time.

262 It suffices to say that a practical solution to resolve any potential adverse impact arising from any failure to follow the myriad instructions of the accused to his previous counsel, and to address the many complaints of the accused, is to allow the accused’s new counsel, Mr Hassan and Ms Chitra (who would presumably have properly taken a comprehensive set of instructions from the accused by now), to recall the necessary witnesses (including the accused) or call further witnesses based on those instructions when the main trial resumes.

263 For the reasons I have stated, I allow the accused’s application to (a) recall certain Prosecution witnesses for further cross-examination; (b) give further evidence-in-chief in support of his defence; and (c) call additional witnesses (if any) to testify in his defence. The DPP is of course allowed to further re-examine those Prosecution witnesses recalled by the accused and further cross-examine the accused on his further evidence-in-chief. The additional witnesses (if any) called by the accused to testify will be subject to the usual cross-examination by the DPP and re-examination by the accused. The fresh evidence to be led must, as far as possible, not be a repeat what has been adduced as evidence earlier in the main trial. The additional evidence must of course be relevant and legally admissible.

264 I reiterate that this case is not simply one of inadequate legal representation where, amongst other things, there was much difficulty faced by the accused in giving his instructions to Mr Johan and inappropriate advice was given to the accused to exonerate Babu contrary to the instructions of the accused. It also concerns Babu’s persistent and undue pressure on the accused to change his evidence to exonerate Babu. It also unfortunately involves pressure from the accused’s own previous counsel, Mr Revi Shanker, to accept his legal advice and trial strategy to save both Babu and the accused’s own life by testifying in court that the accused (and not Babu) had ordered the drugs. Mr Revi Shanker’s trial strategy also entailed the accused, in return for exonerating Babu, receiving evidential support for the accused’s own one bundle defence which would be forthcoming from Babu’s side, and which Mr Revi Shanker told the accused Mr Tiwary had given an assurance on. This case also involves the Prosecution’s calling of Babu as a rebuttal witness after Babu pleaded guilty. This event, which was not anticipated by the accused, now precipitates the need, from the accused’s perspective, to rebut Babu’s very damaging evidence by adducing additional evidence to demonstrate Babu’s lack of credibility and perhaps also to establish Babu’s desire for revenge.