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Grounds publishedDecided 16 Nov 2022
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General Division of the High Court

Public Prosecutor v Haridass s/o Mohan

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[2022] SGHC 288Case no. Criminal Case No 33 of 2018

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  1. Chan Seng Onn SJ:

  2. Introduction

  3. [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.

  4. [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.

  5. [3] Babu was tried jointly with the accused until he (ie, Babu) pleaded guilty midway during the joint trial.

  6. [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:

  7. [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.

  8. [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.

  9. Background

  10. [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:

  11. (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.

  12. (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.

  13. (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.

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

  15. [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. 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. 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.

  16. [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.

  17. [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.

  18. [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. The DPP indicated that he intended to call Babu later as a Prosecution witness. 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:

  19. [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.” 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 . 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.

  20. Events leading to the ancillary hearing

  21. [13] After Mr Hassan and Ms Chitra had finished re-examining the accused, the DPP raised the following issue before me:

  22. [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. 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. 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. 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. 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. 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. 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. 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.

  23. [15] I expressed my concern as follows:

  24. [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. 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. The DPP agreed that was the most practical solution at this point to avoid a retrial.

  25. [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, namely, the issue of inadequate representation.

  26. [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), particularly to rebut the accused’s evidence that Babu told him there was one packet ordered and not three, I ruled against the objection of Ms Chitra that the Prosecution was not entitled to call Babu as a rebuttal witness in the case. 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.

  27. [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. 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. 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. 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. 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. 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.

  28. [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. Thereafter, an ancillary hearing would be held with oral evidence being given and witnesses being cross-examined accordingly.

  29. [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.

  30. [22] The following witnesses testified at the ancillary hearing:

  31. For the Accused

  32. 1

  33. The accused (His affidavit was affirmed on 20 January 2022.)

  34. 1T-CW1

  35. 2

  36. Mr Bachoo Mohan Singh (“Mr Bachoo Mohan”)

  37. 1T-CW2

  38. 3

  39. Ms Siroshini Sivaperumal (“Ms Siroshini”)

  40. 1T-CW3

  41. 4

  42. Mr Sunil

  43. 1T-CW4

  44. 5

  45. Ms Kavitha Gopyhadhan (“Ms Kavitha”)

  46. 1T-CW5

  47. For Mr Johan and Mr Revi Shanker

  48. 1

  49. Mr Johan (His affidavit was affirmed on 10 April 2022.)

  50. RW1

  51. 2

  52. Mr Revi Shanker (His affidavit was affirmed on 11 April 2022.)

  53. RW2

  54. 3

  55. Mr Tiwary

  56. RW3

  57. Complaints of the accused and his evidence

  58. [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:

  59. [24] The accused alleged that his previous counsel failed to:

  60. (a) take full instructions on his defence;

  61. (b) render independent legal advice to him;

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

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

  64. (e) address his concerns; and

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

  66. [25] The accused felt that his previous counsel did not run his defence in the way he wanted it. 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.

  67. [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.

  68. Complaint No 1 – Accused’s further statement dated 6 February 2015 made to the Investigating Officer not admitted into evidence as instructed

  69. [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.

  70. [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.

  71. [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.

  72. [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.

  73. [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.

  74. Circumstances after the 6 February Statement leading to the appointment and subsequent discharge of Mr Manoj, and the creation of the accused’s handwritten statement on 3 March 2016 that exonerated Babu

  75. [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.

  76. [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.

  77. [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. The accused became depressed over what his girlfriend had done. He was on medication for his depression. The accused said:

  78. [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.

  79. [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.

  80. [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. According to the accused, he and Mr Tiwary started off with a casual conversation. The accused said:

  81. The accused further said:

  82. [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. 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”. 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. 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.” 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.” 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.

  83. [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?” 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.

  84. [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.

  85. [41] The last visit by Mr Tiwary was 15 April 2016. At this tele-visit, the accused recalled the following:

  86. [42] The accused went on to say:

  87. [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”.

  88. Complaint No 2 – Handwritten statement of the accused dated 3 March 2016 not admitted into evidence as instructed

  89. [44] The handwritten statement signed by the accused was tendered in evidence at the ancillary hearing. In the statement, the accused mentioned amongst other things that:

  90. (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.

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

  92. (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.

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

  94. [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. 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.

  95. [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.” 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?”. 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.” 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.” , “You think you’re very smart? Then you defend yourself. You want to discharge me? Go ahead.” And “I’m your lead counsel; you listen to what I tell you.” Whatever the accused insisted, they would show their tantrums to him. For instance, Mr Johan would throw down his pen or raise his voice. Besides Mr Johan would speak to him in a very arrogant and rude manner whenever he spoke to him. He had also complained about Mr Johan’s overbearing conduct in Tamil to Mr Revi Shanker, who would listen and calm the accused down. 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.

  96. [47] The accused also mentioned that he had also shown his handwritten statement to Mr Sunil and told him that he wanted his handwritten statement to be admitted as evidence. 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. 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.

  97. [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.

  98. Previous counsel advising the accused to exonerate Babu in exchange for his support at the trial

  99. [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”. 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. 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:

  100. [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.” The accused explained as follows:

  101. 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.

  102. [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.” 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.” 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.” 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.

  103. The accused was worried about discharging his previous counsel due to numerous changes of counsel

  104. [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.

  105. [53] Even before Mr Johan was engaged to defend the accused, 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.” 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.

  106. [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 . 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.”

  107. [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, 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, and that he was at peace and was prepared to have the statement not being used at all by counsel. 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.

  108. Complaint No 3 – Babu’s statement not admitted into evidence as instructed

  109. [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. When asked if he was angry after reading Babu’s statement, the accused said he was heartbroken 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). Babu further stated in his statement that the accused mentioned Babu’s name because of threats and inducements from the CNB officers.

  110. [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.

  111. [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. 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.

  112. [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, or ask Mr Johan to put Babu’s statement in the greed bundle, to which the accused disagreed.

  113. Complaint No 4 – Accused’s handwritten comments on the call logs in the Agreed Bundle not dealt with

  114. [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:

  115. (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.

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

  117. (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.

  118. [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.

  119. [62] The accused further explained as follows:

  120. [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”. Mr Revi Shanker reassured the accused, saying: “It’s okay when you go on the stand, I will have this admitted in Court.” The accused complained that, however, when he went on the stand, Mr Revi Shanker never did what he had promised to do.

  121. [64] The accused described the difficult situation he faced as follows:

  122. Complaint No 5 – Procuring the call logs of three telephone numbers not carried out as instructed

  123. [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. 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.

  124. [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.

  125. Complaint No 6 – Failure to extract the CCTV camera footages as instructed

  126. [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”. 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.

  127. [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. The accused, however, did show his frustration by repeatedly asking why they could not find it or why it could not be done.

  128. [69] Mr Johan denied this and testified that no such instructions were given by the accused to obtain the CCTV footages.

  129. Complaint No 7 – Failure to respond to the accused’s queries on Ms Suriayanti

  130. [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. The accused could not accept his previous counsel’s advice because he thought that her statement might be helpful to his defence.

  131. [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.

  132. [72] The previous counsel denied that the accused had given such instructions to obtain Ms Suriayanti’s statement from the CNB.

  133. Complaint No 8 – Failure to find out what transpired between Ms Suriayanti and the co-accused’s counsel

  134. [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.

  135. [74] The previous counsel denied that the accused had given such instructions.

  136. Complaint No 9 – Inaccuracies in the accused’s long statements to the CNB officers not properly dealt with

  137. [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.

  138. [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.

  139. [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.

  140. [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.

  141. [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.

  142. [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.

  143. Complaint No 10 – The Agreed Bundle was received very late

  144. [81] The accused complained that he received the Agreed Bundle very late. 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.

  145. [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.

  146. Previous counsel asked the accused not to implicate Babu in his defence

  147. [83] During the ancillary hearing, the accused gave extensive evidence in relation to the previous counsel’s improper conduct when they were representing him.

  148. [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.

  149. [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.

  150. [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.

  151. [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.

  152. [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. 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), and there would be no witnesses to come forward to say that he did. 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. 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. 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.

  153. [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.

  154. [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.

  155. Mr Revi Shanker suggested to the accused to say that CNB officers induced him to implicate Babu in his statements

  156. [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:

  157. [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.”

  158. [93] Mr Johan put to the accused that Mr Revi Shanker never said such things to the accused. The accused disagreed. The accused firmly asserted that, “That the CNB induced me is not true.” 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.”

  159. [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. 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. The accused clarified that there were two parts to his communications with Mr Revi Shanker: 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.

  160. Mr Tiwary’s direct dealings with the accused when he was unrepresented

  161. [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).

  162. [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).

  163. Meetings leading up to the meeting in the lock-up in the Supreme Court

  164. [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.

  165. 1st meeting: tele-visit meeting on 23 February 2019

  166. [98] This 1st meeting was a tele-visit involving only Mr Revi Shanker and the accused on 23 February 2019. It lasted for less than half an hour.

  167. [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. The accused told Mr Revi Shanker, “Babu was just as involved in this case as I was. Let him come and tell the truth.” Then Mr Revi Shanker told the accused, “Hari, just relax, just listen to what I say.” 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.

  168. [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, provided that the accused did not involve Babu in the case. 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. Mr Johan then put to the accused that what he attributed to Mr Revi Shanker were blatant lies, to which the accused disagreed.

  169. 2nd meeting: face-to-face meeting on 23 March 2019

  170. [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. 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.

  171. [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.

  172. [103] The accused highlighted an event which took place during this 2nd meeting as follows:

  173. [104] After the discussion, the lawyers left. The meeting lasted less than an hour.

  174. 3rd meeting: Lock-up meeting on 3 April 2019 and the discussions immediately preceding it

  175. [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.” 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.” 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.” 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.” 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.”

  176. [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.” The accused said to Mr Revi Shanker: “We are both fighting against each other. Why should his lawyer come to see me?” Then Mr Revi told the accused: “You have to listen to what he has to say and take the decision.”

  177. [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.

  178. [108] The accused recalled the gist of the meeting as follows:

  179. [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).

  180. [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.

  181. [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:

  182. [112] This version is broadly consistent with his earlier evidence on the lock-up meeting given on two previous occasions.

  183. Previous counsel’s recollection of the lock-up meeting and the discussions immediately preceding it

  184. [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.

  185. Mr Revi Shanker’s written notes of the lock-up meeting

  186. [114] In his affidavit, 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:

  187. [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”. 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”. The accused therefore exonerated Babu and accepted blame. Babu later hugged the accused and thanked the accused for doing so.

  188. [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.”

  189. [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.” 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.

  190. Failure to cross-examine certain Prosecution witnesses

  191. [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:

  192. (a) DSP William Tan

  193. (b) SSI David Ng

  194. (c) SSS Alwin Wong Kah Hung

  195. (d) SSgt Sunny Chien Lik Seong

  196. (e) Sgt Muhammad Helmi Abdul Jalai

  197. (f) Sgt Dadly Bin Osman

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