Chapter 9 - Charges

Question 1

CHARGES

Overview

Answer 1

1) General principles on charges
2) Form of charges
3) Effect of errors in charge
4) Rules governing form & trial of charges
5) Amendment of charges
6) Conviction of unframed charges
7) Withdrawal of remaining charges
8) Striking-out charges
9) Curing defective charges

Question 2

GENERAL PRINCIPLES ON CHARGES

Overview

Answer 2

1) Definition of charge
2) Object of charge
3) Purpose of charge
4) Effect of defective charge

Question 3

GENERAL PRINCIPLES ON CHARGES

Definition of charge

Answer 3

R v Mohamed Humayoon Shah:

• A notice to the prisoner of the matter whereof he is accused.

Question 4

GENERAL PRINCIPLES ON CHARGES

Object of charge

Answer 4

R v Mohamed Humayoon Shah:

To convey to him with sufficient clearness and certainty of:

1) PROSECUTION:
what the prosecutor intends to prove; and

2) ACCUSED:
which he will have to clear himself.

To give the court:

3) EVIDENCE:
information to the court which is to try the accused of the matters to which evidence is to be directed.

Question 5

GENERAL PRINCIPLES ON CHARGES

Purpose of charge

Answer 5

1) PP v Lee Pak:
- the charge should show the accused EXACTLY and with PARTICULARITY the case which he has to meet
2) Jager Singh v PP:
- an accused person must know exactly what is the charge which he is called upon to answer, so that he know what offence he has been convicted.

Question 6

GENERAL PRINCIPLES ON CHARGES

Effect of defective charge

Answer 6

• whether curable under S.422 or not, depends on whether the accused has been prejudiced.
  1) On conviction of the accused - Lim Beh v Opium Farmer:
• a conviction can be quashed on the ground that the charge was uncertain and bad.
  2) On plea of guilty - Mathivanan a/l Mahathevan v Pendakwa Ray:
• When the charge is defective, it amounts to a nullity;
• There cannot be a plea of guilty to such a charge that is so fundamentally defective.
• A plea of guilty to an unknown offence is NO PLEA at all.

3) On conviction based on plea of guilty - PP v Muhammad Zaid bin Zainal:
- Where the accused had pleaded guilty on a charge that is fundamentally defective, the conviction based on the plea of guilty is liable to be set aside.

Question 7

FORMS OF CHARGE

Overview

Answer 7

1) General principles in forms of charge
2) The law & scope
3) The offence - general
4) The offence - offence with no name
5) The offence - Previous conviction
6) Time, date & place - the law & scope, issues on date, example of mistake, curing the mistake as to date, issue on place
7) Manner in which the offence is committed, where needed
8) Recent decision

Question 8

FORMS OF CHARGE

The law & scope

Answer 8

1) Forms of charge:
- S.152
2) Particulars as to time, place & persons:
- S.153
3) Manner of offence committed:
- S.154
4) Charge forms:
- S.172 + Second Schedule

Question 9

FORMS OF CHARGE

The offence - offence with no name

Answer 9

1) The law - offence with no name
- S.152(3)
2) Scope - Krishnan & Anor v PP:

• When the law creating the offence does not give it any specific name, so much of the definition of the offence must be stated in the charge sheet.
• It is not mandatory that complete definition should be given, sufficient that the definition gives the accused notice to enable him to answer the charge.

Question 10

FORMS OF CHARGE

Time, date & place

Answer 10

The law:

• S.153(1)

Question 11

FORMS OF CHARGE

Issues on date

Answer 11

1) General time or date - DSAI v PP:

• It is permissible to state that the offence was committed on or before a certain date; or
• That the offence was committed within a certain period or state a duration of time.

2) Mistake as to date - Law Kiat Lang v PP:

• the mistake in charge with regard to the date is not material as it was no essential to the offence.
• this is so unless the date was an essential part of the alleged offence.
• an error of date or place or minor inaccuracies are not sufficient to quash a conviction unless it has prejudiced the accused & caused a failure of justice.
• Therefore, the test is:
  Whether the mistake has prejudiced the accused;
  Whether time is essential & material to the offence.

3) Date in sexual offences - Mohamad Nazeril Mohamad Hamidi v PP (HC, 2020):
- It is settled jurisprudence, as far as sexual crimes are concerned, that date and time of offence is never a material issue before the court trying such cases.
4) Effect of mistake on prosecution - Hanif Mohamad Ali v PP (CA, 2016):
- any serious error in the charge in some circumstances can affect the proof of the prosecution case or raise the question whether it has discharged the burden of proving the offence with which the accused is charged.

Question 12

FORMS OF CHARGE

Example of mistake as to date

Answer 12

Razali bin Samani v PP (CA, 2011)

• In the charge the offence was alleged to have taken place on 20 February 2004.
• However, the evidence show that the offence and the arrest took place on 19 February 2004.
• This issue was not raised in the court below and the learned trial judge did not address this issue in his judgment.
• Notwithstanding that, CA is of the view that the error in the charge against the appellant had not occasioned a failure of justice.

Question 13

FORMS OF CHARGE

Curing mistake as to date

Answer 13

Hanif Mohamad Ali v PP (CA, 2016):

• the trial judge had correctly decided that the defect was not fatal as it was curable under S.422 CPC.
• Apart from s. 422, the learned judge could also rely on s. 156 of the CPC as such error was not material unless the accused was in fact misled by that error.
• As long as the irregularity had not occasioned a failure of justice & it did not mislead the accused, the irregularity is curable.

Question 14

FORMS OF CHARGE

Issues on place

Answer 14

1) Drugs found in multiple places - Louis Nonsu Chukwudui (CA, 2019):

• The pills were defecated at different times and at 2 places.
• The learned counsel contended that there should be two separate charges to reflect the said places.

Held:

• There was just one place where the pills came from and that was the accused’s stomach.
• It is same if drug was concealed in a bag but somehow the discovery was made at 2 places – at the house and later at a police station upon a more thorough investigation of the bag.
• The prosecution is entitled to frame the charge to state the first place of discovery for it was in the exact same bag that the drug was found.
• Thus on the facts of this case, the charge has not run afoul of section 153 (1) CPC.

Question 15

FORMS OF CHARGE

Manners that the offence committed

Answer 15

1) The law:
- S.154
2) Scope - PP v Raymond Chia:

• Only if the particulars mentioned in S.152 & 153 do not give an accused person sufficient notice of the matter with which he is charged.
• e.g. complicated cases of forgery or cheating - description in what manner the forgery, cheating or sedition had been committed.

Question 16

FORMS OF CHARGES

Recent decision

FC, 2015

Answer 16

Ravindran Ramasamy v PP

S.152 KPJ:

• sesuatu pertuduhan menyatakan dengan jelas kesalahan yang dipertuduhkan;

S.153 KPJ:

• pertuduhan menyebut butiran kesalahan yang boleh memberi makluman kepada tertuduh berkaitan kesalahan yang beliau dipertuduhkan, seperti masa dan tempat berlakunya kesalahan;

S.154 KPJ:

• menghendaki pertuduhan itu menyebut butiran mengenai bagaimana kesalahan itu dilakukan oleh tertuduh jika butiran yang dinyatakan tidak mencukupi untuk memberi makluman kepada tertuduh mengenai kesalahan yang beliau dipertuduhkan.

S.156 & S.422 KPJ:

• Only applicable for errors in stating particulars & not error in stating ingredients of offence.

Question 17

EFFECT OF ERRORS

Overview

Answer 17

1) The law & scope
2) Error as to offence
3) Error as to date
4) Amendment of charge to remove error

Question 18

EFFECT OF ERRORS

The law & scope

Answer 18

S.156:

• No error shall be regarded as material unless the accused is misled by the error.

Question 19

EFFECT OF ERRORS

Error as to offence

Answer 19

1) Ahmad Zubair v Pendakwa Raya:

• General rule: Errors in stating the offence or particulars, shall not be material;
• Exception: The accused was in fact misled by an error or omission.
• The test: Whether the accused was misled by the error.

2) Scope of error allowed under S.156 - Ravindran a/l Ramasamy:

• Error under S.156 is the error in stating the offence or the particulars required to be stated in the charge;
• And not the error in stating the ingredients of the offence.
• Where it was an error or omission in stating the ingredients of the offence, it is not curable by S.156
• The test:
• – Whether the ingredients of the offence are fully set out & sufficiently state in the charge.
• – Whether the accused is misled & there is failure of justice.

SEE: Curing defective charge below.

Question 20

EFFECT OF ERRORS

Error as to date

Answer 20

1) General - Law Kiat Lang v PP:

• the mistake in charge with regard to the date is not material as it was no essential to the offence.
• this is so unless the date was an essential part of the alleged offence.
• an error of date or place or minor inaccuracies are not sufficient to quash a conviction unless it has prejudiced the accused & caused a failure of justice.
• Therefore, the test is:
• • Whether the mistake has prejudiced the accused;
• • Whether time is essential & material to the offence.

2) Hanif Mohamad Ali v PP (CA, 2016):

• As long as the irregularity had not occasioned a failure of justice & it did not mislead the accused, mistake as to date is curable under S.422 or S.156.
• However, any serious error in the charge in some circumstances can affect the proof of the prosecution case or raise the question whether it has discharged the burden of proving the offence with which the accused is charged.

SEE: Curing defective charge below.

Question 21

EFFECT OF ERRORS

Amendment of charge to remove error

Answer 21

1) Ahmad Zubair Hj Murshid v PP (CA, 2014):

• with the leave of the court, the prosecution is entitled to amend the charges at any stage of the trial with the leave of the court.
• The rules governing amendment of charges are provided for in ss. 158 to 162 and in s. 173(h)(ii) CPC.

2) PP v Sa’ari Jusoh (FC 2007):

• Prosecution amend the charge & removes the ingredient of common intention for the offence.
• Where the evidence adduced discloses an offence other than the subject matter of the original charge, the charge may be amended accordingly on the authority of S.158 of the Code.
• The Code contains sufficient safeguards (i.e. recalling of witness, direct for new trial etc) to ensure that the accused is not prejudiced by an amendment to the charge.
• The test is whether the accused is prejudiced or not is whether the defence has had the opportunity to meet the new basis for conviction.

Question 22

RULES GOVERNING FORM & TRIAL OF CHARGES

Overview

Answer 22

1) Rule against duplicity
2) Rule against misjoinder of charges
3) The cumulative principles

Question 23

RULE AGAINST DUPLICITY IN FORM OF CHARGE

Overview

Answer 23

1) The law & scope
2) General rule & meaning of rules against duplicity
3) Exceptions & scope
4) Effect of offending rule against duplicity
5) Miscellaneous

Question 24

RULE AGAINST DUPLICITY

The law & scope

Answer 24

First limb of S.163:

• distinct charge for separate offence.

Question 25

RULE AGAINST DUPLICITY

General rule & meaning of rule against duplicity

Answer 25

1) General rule: S.163
- distinct charge for separate offence.
2) Meaning of duplicity of charge:
- Two offences (i.e. two actus reus committed in different occasions / involving different victims), but only one charge is framed against the accused to convict him for both offences.
3) Meaning of rules against duplicity:

• One offence = one charge, two offence = two charges etc.
• Prohibits the inclusion of more than one offence in a single charge.

Question 26

RULE AGAINST DUPLICITY

Exceptions & scope

Answer 26

1) The law:
- S.153(2)
2) Exception 1:
- S.406-409 PC: CBT
3) Exception 2:
- S.403 - 404 PC: Misappropriation of
4) Scope of exceptions - Aisyah Mohd Rose & Anor v PP (CA, 2016):

S.153(2):

• For CBT, it shall be sufficient to specify the gross sum and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates.
• The section prevailed over the general provision in s. 164 CPC.

S.163:

• For every distinct offence, there shall be a separate charge.

OTF:

• In the instant appeal, there were no distinct offences but only the offence of criminal breach of trust.
• Therefore, there is no violation of S.163.

Question 27

RULE AGAINST DUPLICITY

Effect of offending rule against duplicity

Answer 27

1) See Yew Poo v PP:

• the duplicity of charges was merely an irregularity which can be cured under S.422;
• this is so provided that the accused was not prejudiced and there was no failure of justice.

2) Mahendran a/l Manickam v PP:

• the duplicity of charges will be treated as mere irregularity;
• this is so unless the duplicity consisted of two alternative charge in the charge and it is important for the accused to know with certainty what he was charged and convicted for.

Question 28

RULE AGAINST DUPLICITY

Miscellaneous

Answer 28

• Drugs discovered in two different places in the same bag (e.g. airport & police station) is considered as one offence.
• Drugs excreted at two different times & places are considered as one offence.

Question 29

RULE AGAINST MISJOINDER OF CHARGES IN TRIAL

Overview

Answer 29

1) The law & scope
2) General rule & meaning of misjoinder of charges
3) General exceptions & scope
4) Exception 1 - S.164
5) Exception 2 - S.165
6) Exception 3 - S.166
7) Exception 4 - S.170
8) Effect of offending the rule against misjoinder of charges

Question 30

RULE AGAINST MISJOINDER OF CHARGES

The law & scope

Answer 30

Second Limb of S.163:

• Every charge for distinct offence should be tried separately.

Question 31

RULE AGAINST MISJOINDER OF CHARGES

General rule & meaning of misjoinder of charges

Answer 31

1) General rule:
- Every charge for distinct offence should be tried separately.
2) Meaning of misjoinder of charges:
- The charges are tried together in one trial.
3) Meaning of rule against misjoinder of charges:
- One charge = one accused = one trial.

Question 32

RULE AGAINST MISJOINDER OF CHARGES

General exceptions & scope

Answer 32

1) General exceptions:

• S.164;
• S.165;
• S.166;
• S.170.

2) Scope - Jayarahman & Ors v PP:

• S.164: not more than 3 offences of the same kind committed within 12 months.
• S.165: one trial for all offences committed by the same person arising out of the same transaction. No limit to the number of charges.
• S.166: Several offences are disclosed and it is doubtful which particular offence to charge; may be charge with all the offences or in the alternative of every such offence.
• S.170: Several accused persons + same offences / offence of same kind / different offences in same transaction. No limit to the number of charges.

Question 33

EXCEPTION 1 - S.164

Overview

Answer 33

1) The law & scope
2) Meaning of same kind offences
3) Maximum 3 offence

Question 34

EXCEPTION 1 - S.164

The law & scope

Answer 34

1) The law:
- S.164
2) Scope:

Question 35

EXCEPTION 1 - S.164

Meaning of same kind offences

Answer 35

1) The law:
- S.164(2)
2) Seng Sai Kee v PP:
- S.164(2) explains what does it mean by same offence.

Question 36

EXCEPTION 1 - S.164

Maximum of 3 offence

Answer 36

1) The law:
- S.164(1)
2) Effect of non-compliance - Mohd Azahan Aminallah v PP:

• The accused’s complaint that he had been charged and tried at one trial for four similar offences allegedly committed through a span of five years was justified & in breach of S.164(1).
• It was not a mere irregularity but an incurable illegality.

Question 37

EXCEPTION 2 - S.165

Overview

Answer 37

1) The law & scope
2) Same transaction
3) Two or more separate definitions in law
4) Several acts constituting one offence

Question 38

EXCEPTION 2 - S.165

The law & scope

Answer 38

1) The law:
- S.165
2) Scope:

• One trial for all offences committed by same person arising out of the same transaction.
• No limit as to number of charges which may be preferred.

Question 39

EXCEPTION 2 - S.165

Same transaction

Answer 39

1) The law:
- S.165(1)
2) Meaning of same transaction - Amrita Lai Hazra v Emperor:
- proximity of time, unity or proximity of place, continuity of action and community of purpose and design.
3) When the same transaction must be determined - PP v Ridzuan Kok bin Abdullah:
- At the time the charge is framed & not at the end of the trial.

Question 40

EXCEPTION 2 - S.165

Two or more separate definitions in law

Answer 40

1) The law:
- S.165(2)
2) Examples:
- Illustrations (g) to (j)
3) Punishment - S.71(2) PC:

• the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.
• i.e. punishment should be lower than the highest.

Question 41

EXCEPTION 2 - S.165

Several acts constituting one offence

Answer 41

1) The law:
- S.165(3)
2) Example:
- Illustration (k)
3) Punishment - S.71(2) PC:

• the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.
• i.e. punishment should be lower than the highest.

Question 42

EXCEPTION 3 - S.166

The law, scope & example

Answer 42

1) The law:
- S.166
2) Scope:

• Doubtful of which several offences which finally be proved;
• The accused may be charged with all the offences disclosed or in the alternative for every such offence.
• There is no limit as to number of charges.

3) Example:
- Illustration (a)
4) Punishment - S.72 PC:

• the offender shall be punished for the offence for which the lowest punishment;
• i.e. punishment should be lower than the lowest.

Question 43

EXCEPTION 4 - S.170

Overview

Answer 43

1) The law & scope
2) Meaning of same transaction
3) Meaning of common intention
4) Whether common intention is the test

Question 44

EXCEPTION 4 - S.170

The law & scope

Answer 44

1) The law:
- S.170: situations where persons may be charged jointly.
2) Scope:

• Several person commits the same offence; or
• Several person commits several offence of the same kind; or
• Several person commits different offences in the same transaction;

In such a situation, all the accused person can be charged with committing all the offences at the same trial.

Question 45

EXCEPTION 4 - S.170

Meaning of same transaction

Answer 45

Jayarahman & Ors v PP, ref. Amrita Lal Hazra v Emperor:

• proximity of time.
• unity of proximity of place.
• continuity of an action;
• community of purpose and design; i.e. common intention.

Question 46

EXCEPTION 4 - S.170

Meaning of common intention

Answer 46

S.34 Penal Code:

• When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.

Question 47

EXCEPTION 4 - S.170

Whether common intention is the test

Answer 47

PP v Muhammad Nasir bin Shaharuddin & Anor:

• joint charge: prosecution must adduced sufficient evidence to establish the guilt of each of the accused as a separate exercise.
• common intention: prosecution needs to establish that only one of the accused committed the act and the others participated in common intention.
• when the accused persons are tried under S.170, the prosecution must prove the guilt of each and every accused separately;
• it follows that each accused may be acquitted or convicted of independently committing the offence which is the subject matter of the joint charge.

Question 48

RULE AGAINST MISJOINDER OF CHARGES IN TRIAL

Effect of offending the rule against misjoinder

Answer 48

1) On the trial - Subramania Iyer v King-Emperor:
- joint trial for the appellant with 41 different charges and period of two years was plainly illegal and such disobedience to the express provision.
2) On the convictions - Chin Choy v PP:

• the wrongful joinder of two offences consorting together with two other charges of unlawful possession of firearms that were committed within 7 years was an illegality and NOT curable under S.422.
• convictions were quashed; a retrial being ordered.

3) Recent - Azahan Mohd Aminallah v PP:

• The accused complained that he had been charged and tried at one trial for four similar offences allegedly committed through a span of five years.
• CA referred to Subramania & Chin Choy and held that the trial of the appellant was a nullity and must be quashed as it offends the rules against misjoinder & offends the exception under S.164.

Question 49

THE CUMULATIVE PRINCIPLES

Application & examples

Answer 49

1) Principle - Lim Yean Long v PP (CA, 1940):

• 1 CBT, S.408 + 2 falsification of documents, S.477A on three occasions + 1 forgery, S.465.
• Held: exceptions mentioned in S.163 are cumulative and not mutually exclusive.
• All the 10 charges can be jointly tried pursuant to the cumulative effect of S.164 & 165.

2) Application - Lim Tain Chye v PP:

• 3 counts of CBT, S.408 + 3 counts of cheating, S.418 + 3 counts of fraudulently using as genuine forged documents, S.467 & 471.
• Total of 9 charges can be lawfully tried together at one trial by virtue of cumulative effect of S.164 (‘same kind’) and S.165 (‘same transaction’).

3) Recent - Norhazeni Ahmad v PP (HC, 2017):
- persons may be charged and tried together if they are:
* accused of the same offence *committed in the course of the same transaction; or *persons accused of different offences committed in the course of the same transaction.

Question 50

AMENDMENT OF CHARGES

Overview

Answer 50

1) The law & scope

2) Whether it is mandatory to read & explain

Question 51

AMENDMENT OF CHARGES

The law & scope

Answer 51

1) S.158:
- Court may alter / add charge any time before judgment is pronounced.
2) S.159:
- call to plead & ask whether ready to be tried.
3) S.160:
- court may direct adjournment or order new trial if proceeding immediately will prejudice the accused or the prosecution.
4) S.161:

• court may adjourn if the new charge requires sanction;
• unless the sanction has been obtained on the same facts.

5) S.162:

• accused shall be allowed to recall, re-summon or examine;
• accused shall be allowed to call any further evidence.

Question 52

WHETHER IT IS MANDATORY TO READ & EXPLAIN

The law & scope

Answer 52

1) The law - S.158
- such alteration / addition shall be read & explained to the accused.
2) Scope - Chieng Chung Ting v PP (CA, 2015)

• every such alteration or addition shall be read and explained to the accused.
• It does not require that a plea be taken again (but, see S.159).
• If, after the amendment, an accused does not inform the court that he is changing his plea, it means he is maintaining his plea of not guilty.
• OTF the court had amended the charge P2 pursuant to s. 158(1) to reflect the proven facts ie, by deleting the word “storeroom” and substituting it with the words “unnumbered room” in such charge, which was explained to the appellant to which he understood and maintained his plea of not guilty.
• there is no non-compliance with S.158.

Question 53

WHETHER IT IS MANDATORY TO READ & EXPLAIN

Test

Answer 53

1) General:

• Whether the amendment is technical or substantial in nature;
• Whether it had departed substantially;
• Whether it has occasioned failure of justice.

2) Principle - Hee Nyuk Fook v PP:

• the word “shall” although generally taken as mandatory, does not mean to be so in every case.
• it depends on the facts and circumstances of a particular case, the purpose and object for which such provision is made, the intention of the legislature in making the provision and the serious inconvenience or injustice which may result in treating the provision one way of the other.

Test:

• look into the subject-matter of the case, consider the importance of the provision that has been disregarded, the relation of the provision to the object of the Code and decide in that order whether the matter is imperative or only directory.

Held:

• OTF, is not imperative but directory.
• The provisions contained therein only lay down a rule of procedure and do not relate to the mode of trial.

Question 54

WHETHER IT IS MANDATORY TO READ & EXPLAIN

Example of failure to explain

Answer 54

Andy Majudil v PP:

• since the amendment was not substantial & did not change the facts, it cannot be said that the accused was prejudiced.
• the procedural non-compliance with S.158 for the amended charge to be read and explained had not occasioned a miscarriage of justice to the accused & can be cured under section 422 of the CPC.

Question 55

WHETHER IT IS MANDATORY TO READ & EXPLAIN

Recent examples of failure to explain

CA, 2005

Answer 55

Kamaruddin Mat Diri v PP (CA, 2005):

• Although the charge was not read to the accused immediately upon its amendment, it was subsequently read to him when he appeared before another sessions judge after several adjournments.
• Follows Hee Nyuk Fook.

Question 56

WHETHER IT IS MANDATORY TO READ & EXPLAIN

Recent examples of failure to explain

CA, 2012

Answer 56

Fam Meng Siong v PP

• The discretionary power of the public prosecutor to prefer an alternative charge before the close of the prosecution case is not a transgression of the power of the court to alter or add a charge at any time before judgment under s. 158;
• The notes of proceedings at the High Court showed that the alternative charge was read to all the accused, and that they claimed trial to the alternative charge.
• The accused did not raise any objection to the alternative charge nor applied to recall any prosecution witnesses pursuant to the introduction of the alternative charge.
• As long as the accused were not in any way prejudiced by the introduction of the alternative charge to which they claimed trial, there is no ground to conclude that there was a miscarriage of justice.

Question 57

CONVICTION OF AN UNFRAMED CHARGE

Overview

Answer 57

1) General rule
2) Exception 1 - S.167
3) Exception 2 - S.168
4) Exception 3 - S.169

Question 58

CONVICTION OF AN UNFRAMED CHARGE

Exception 1 - S.167

Answer 58

1) The law - S.167:
- Convicted with another offence which he could be charged for.
2) Test - Lew Cheok Hin v R:

• Facts are available from the start.
• Charge could have been framed and tried concurrently under S.166.
• Evidence must have been presented in such a way that raise all the same issues of fact as would have been raised in the unframed charge been framed and tried.

3) Examples:
* CBT & cheating - Penal Code - Sivalingam v PP:

• The ingredients required to prove S.409 (CBT) and S.420 (cheating & dishonestly induce deliver of property) are not exactly the same.
• Substitution of a conviction under S.409 could not be said to have been validly made with regard to this circumstances.

cf.

• Theft - Gurdit Singh v PP:
• the main and necessary ingredient present in both S.380 and S.454; commission of theft.
• requirements of S.167 are fulfilled.
• the unframed charge was available & the evidence has raised the same issues of facts, i.e. theft, which is relevant to both S.454 & 380.

Question 59

CONVICTION OF AN UNFRAMED CHARGE

Exception 2 - S.168

Answer 59

1) The law - S.168:
- Convicted with attempt of the offence.
2) Application - robbery & attempted robbery - Quinn & Howland v R:
- it was lawful for the jury to return a verdict of guilty on an unframed charge of attempted robbery when the trial was for the charge of robbery.
3) Punishment for attempt - S.511 Penal Code:

• punishment for attempt of committing the offence punishable with imprisonment should be the same as committing the offence itself;
• Provided that any term of imprisonment imposed shall not exceed one-half of the longest term provided for the offence.

Question 60

CONVICTION OF AN UNFRAMED CHARGE

Exception 3 - S.169

Answer 60

1) The law - S.169
- Convicted for minor offence.
2) Meaning of minor offence - Lew Cheok Hin v R:

• it is not identical with less serious.
• it means produced by deletion without other alteration.
• maximum sentence for the convicted offence may be lighter; but lighter sentence is not the test.

3) Application & example - causing death by negligence - Mohamed Yasin Bin Hussin v PP:

• death is caused in a rash circumstance.
• ‘rash’ came within the meaning of S.304A (causing death by negligence).
  conviction for murder is substituted.

4) Application & example - murder & culpable homicide - Tham Kai Yau & Ors v. PP, per Raja Azlan Shah:

• ‘It is culpable homicide if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the ordinary course of nature to cause death.
• It is a question of degree of probability.’
• Ref. S.300 PC, Illustration (c)

5) Recent example - PP v Jarau Anak Kerukar:

• S.302 was reduced to S.304(a).
• At the end of defence, S.304(a) is substituted with conviction S.326.
• This is allowed under S.169(2) as well as S.167.

Question 61

WITHDRAWAL OF REMAINING CHARGES

Overview

Answer 61

1) Multiple charges

2) Outstanding charges

Question 62

WITHDRAWAL OF REMAINING CHARGES

Multiple charges

Answer 62

S.171

Question 63

WITHDRAWAL OF REMAINING CHARGES

Outstanding charges

Answer 63

1) the law:
- S.171A
2) Accused must admit to having committed the offence - Hashim bin Pawanchee & Anor v PP:

• In determining and in passing sentence on the accused who is found guilty if an offence, court may take into consideration any other outstanding offences;
• The accused must admit to having committed them.

3) Record must indicate that other offence has been taken into account - Abang Zailan bin Abang Zainal v PP:
- The record of the proceedings must indicate that other offences have been taken into account in sentencing.

Question 64

STRIKING OUT CHARGES

Overview

Answer 64

1) Exercise of inherent powers

2) Conflict with PP’s power

Question 65

STRIKING OUT CHARGES

Exercise of inherent powers

Answer 65

Ahmad Zubair Hj Murshid v PP (2014):

• must be exercised in exceptional circumstances to prevent undue oppression and abuse of the process of the court.
• cannot exercise its inherent jurisdiction in respect of any matter covered by specific provisions of the law or if its exercise would infringe any specific provisions of the law.
• in matters like criminal law of a purely domestic nature, the court will only exercise its inherent power when there is miscarriage of justice.

Question 66

STRIKING OUT CHARGES

Conflict with PP’s power

Answer 66

PP v Datuk Hj Wasli Md Said & Other Appeals (2014

• In exercising its inherent powers, it cannot be said that the court is fettering the powers of the public prosecutor.
• Whether there is a merit to say that KL charges were preferred in bad faith, and accordingly, ought to be struck out by inherent power of the court:
• – Accordingly, there is no merit here to say that the KL charges against WMS were preferred in bad faith and for an improper purpose.
• – The explanation of the learned deputy public prosecutor that these KL charges were then in a period of gestation waiting to be born, was accepted.
• –The delay was satisfactorily explained, although even if not clarified, this alone could not amount to a prima facie mala fide act, for into that phrase, “exercisable at his discretion” as found under art. 145(3) Federal Constitution, should read as the power to prefer whatever charges and at whatever time he chooses.
• In this respect, the court’s inherent power cannot be invoked to override that express provision of the law.

Question 67

CURING DEFECTIVE CHARGE

The law & provisions

Answer 67

1) S.156:
- No error or omission to state the offence shall be regarded as material unless the accused was misled by the error.
2) Scope of S.156 - Ravindran Ramasamy v PP:

• The “error” in s. 156 is the error in stating the offence or the particulars required to be stated in the charge;
• Not the error in stating the ingredient of an offence.
• When there is error in stating the ingredient, S.156 will not apply.

2) S.422:
- No finding, sentence or order passed shall be reversed by any error, omission or irregularity in the charge unless such error has occasioned failure of justice.
3) Scope of S.422 - Ravindran Ramasamy v PP (FC, 2015):

• Under S.422, for an error or omission to be material, it is not enough that the accused had been misled;
• there must also be a failure of justice.
• when there is a failure of justice, S.422 will not apply to assist the prosecution.

4) Distinction & applicability of the provisions - Hamimah Idruss v PP:

• S.422 covers a situation where there could be an omission in a charge as long as it does not occasion a failure of justice.
• S.156 enacts that no error or omission in the charge is material unless the accused was misled in his defence.

Question 68

CURING DEFECTIVE CHARGE

Test for miscarriage or failure of justice

Answer 68

1) General:

• depends on the facts of the case
• whether it has prejudiced the accused
• whether it has occasioned failure of justice.

2) Kiew Foo Mui v PP:

• Failure of justice does not connote that the Court should be of the opinion that an innocent person has been convicted or the case against the accused person is not made out beyond reasonable doubt;
• The ‘failure of justice’ mentioned therein is that occasioned by the contravention of the provisions in CPC;
• The expression ‘justice’ comprehends not merely a just decision but also a fair trial.
• A denial of fair trial is denial of justice;
• i.e. Therefore, when the error or omission in the charge has denied a fair trial for the accused, it will occasion a failure of justice & thus S.422 will not apply.

3) Pie Chin v PP:

• prejudice is an essential ingredient to the failure of justice;
• therefore, the test is whether the accused has been in any way prejudiced in his defence by this error.
• if he is prejudiced, S.156 & 422 will not apply.

4) Ravindran Ramasamy v PP:

• the test for “failure of justice” is whether the irregularity or error involves the breach of a principle of general importance to the administration of criminal justice.
• if it does, S.422 & S.156 does not apply.

5) Can only be determined after all evidence has been adduced - Ahmad Zubair Hj Murshid v PP:
- whether the accused was misled by any error or omission in the charges or whether such error or omission has occasioned a failure of justice can only be determined at the conclusion of the trial having regard to the entire evidence being placed before the trial judge.

Question 69

CURING DEFECTIVE CHARGE

Example of defective charge not amounting to failure of justice

CA, 2020

Answer 69

Error to specify limb - Hamimah Idruss v PP

• Even if there was a legal requirement to state the exact particulars or the specific limb of s. 107 in the abetment charge, s. 422 & 156 of the CPC should come to the aid of the prosecution as there was no failure of justice.
• The accused took the witness stand to deny the allegations of SP47 and gave her own account of the events that led to the procurement of funds from SFA.
• Therefore, the argument that the charges were fatally defective on account of lack of particulars was without merit as the accused was not prejudiced in her defence.

Question 70

CURING DEFECTIVE CHARGE

Example of defective charge amounting to failure of justice & prejudicial to the accused

FC, 2015

Answer 70

Error in stating ingredients of the offence - Ravindran Ramasamy v PP

• S.156 & 422 of the CPC would not save a defective charge where the accused was misled and a failure of justice has occasioned.
• Where it was an error or omission in stating the ingredients of an offence, it had been consistently held by the courts that the accused would have been misled and that there must have been a failure of justice.
• On the facts, the appellant would have been misled and that a failure of justice would have been occasioned was most apparent.
• The omission in not stating the presence of the appellant at the scene would have misled him to believe that the case to answer was not for an offence under s. 3A.
• Rather, the omission, coupled with the error in stating that the appellant and Jayakumar discharged a firearm, could even have convinced the appellant that the case to answer was indeed for an offence under s. 3 FIPA.
• The charge for an offence under s. 3 read with s. 34 and/or s. 3A read with s. 34 is unknown in law.
• The conviction was thus a nullity and there was a total failure in the administration of justice.

Question 71

CURING DEFECTIVE CHARGE

Other examples

Answer 71

1) Error as to date - Law Kiat Lang v PP:

• the mistake in charge with regard to the date is not material as it was no essential to the offence.
• this is so unless the date was an essential part of the alleged offence.
• an error of date or place or minor inaccuracies are not sufficient to quash a conviction unless it has prejudiced the accused & caused a failure of justice.

2) Error as to the offence - Ahmad Zubair Hj. Murshid v PP:

• The omission to state the mode in which the trust was to be discharged or of any legal contract made touching on the trust was not fatal at this stage of the proceedings.
• During the course of the trial, the prosecution can amend and lead evidence to identify the breach.
• With the leave of the court, the prosecution is entitled to amend the charges at any stage of the trial.