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Charges - General Rule & Exceptions
CHARGES
it is a big topic because a prosecution cannot proceed without a charge although there are few which could proceed without and may not be fatal. But now it always starts with a charge. Another principle is that one charge 1 accused = 1 conviction.
it is a big topic because a prosecution cannot proceed without a charge although there are few which could proceed without and may not be fatal. But now it always starts with a charge. Another principle is that one charge 1 accused = 1 conviction.
A. General Rule
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A should be convicted only for the offence
stated in the charge or amended charge
B. Exception
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There are 4 exceptions under s.167-s.169
CPC which provide that A may be convicted for an offence not charged. There can
be third conviction for an offence not charged, may fall under one of the
section here mentioned.
I.
FIRST EXCEPTION S.167
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If A is charged with one offence and it
appears in evidence that he committed a different offence for which he might
have been charged according to s.166 CPC he may be convicted of the offence not
charged. See s.166 where facts are clear but not clear and not obvious of the
offence and will only be obvious after the evidence is looked into. But there can be situation where can have
conviction where there is no charge. Example charged with theft but on evidence
there was CBT or receiving stolen goods, may be convicted by those 2 although
not charged for it example receiving stolen goods where there is enough
evidence to support the charge.
1.
Lew Cheok Hin v R [1956] MLJ 131
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Court recognized that there can be
conviction for offence not charged under s.167 but court applied two tests under this case in order for s.167 to
apply (in convicting a person for an offence not charged.
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1st = the facts must be such as framed charged
available from the starts (meaning facts were there but somehow charge was not
there, example in CP facts were there but not pleaded example Puncak Emas case here
facts pleaded and evidence shown, not disputed, was on negligence but court
awarded for nuisance as well). Facts were there but the prosecution
preferred (where prosecution can prefer a charge against accused and not for
the court to disturb but on the facts also there is another offence
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2nd = the evidence must be lead on the charged
preferred (same charge leading to another evidence can find conviction on that
offence as well but therefore will offend the general principle of 1 charge, 1
conviction, but because test fulfilled can)
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S.167 can apply it both test can apply
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The judge here mentioned on the general principle
of s.152-153, s.166 and s.167
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Judge also said that s.167 has to be read with s.166 (where facts are obvious and
offence is not). Example based on evidence adduce notice can lead to another
conviction.
2.
Sivalingam v PP [1982] 2 MLJ 172 (FC)
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Here also on s.167 to be read together
with s.166
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In other words, both test must be
fulfilled. Firstly, the facts give rise to the offence and lead to conviction
but not only the facts must be there but evidence must show on the other
offence as well
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So facts + evidence = conviction
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But this conviction is for an offence not
charged.
3.
Gurdit Singh v PP [1983] CLJ Rep 575
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This is HC, it applies the test in Taylor
J judgment in the first case above
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Facts must be there, evidence must be
there for conviction to be saved, the two tests
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The court here used the word ‘substitute’
II.
SECOND EXCEPTION s.168
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If A is charged with an offence he may be
convicted of having attempted to commit that offence although the attempt is not
separately charged
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There should be two charges for two
distinct offence but can have only 1 charge if exceptions can be applied
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But here DPP preferred it that because Art.145
(3) says for PP to decide and not to be interfered with, and example they don’t
charge for attempt, don’t ask.
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But during trial there can be attempt to
commit s.168, although offence for attempt, charge was not there so this
provision allows an oversight on the part of DPP
4.
Quinn v Howland [1949] MLJ 217
III.
THIRD EXCEPTION S.169(1)
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Where accused charged on some particulars
but only some is proved which constitute a minor offence, then he may be
convicted of the minor offence although he was not charged with it
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Example A + B + C = conviction and now
conviction for Z
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During trial only A & B is proved =
can lead to conviction for offence Y (minor offence)
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Look at illustration 169 (where A charged
for CBT for delivering courier, on evidence he did not commit CBT under that
section where it concerns a courier but he may still be convicted for CBT
(where there is different degree of severity) where lower degree of CBT can
have conviction. Minor offence to CBT on delivering courier.
5.
Kundan Singh v PP [1939] 1 MLJ 27
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Minor means in relation to the first
charge or in relation to the offence which was the subject of a charge. So
normally it means a lesser punishment (during tutorial discuss on degree of
extortion where extort is higher than putting one in fear of injury and putting
one in fear of grievous injury is higher than simply extort but then extort in
order to put one in injury is still higher than putting one in fear of injury
in order to extort). à here can
see different degrees of extortion as example
IV.
FOURTH EXCEPTION .169(2)
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Where A is charged with an offence and the
facts are proved which reduce it to a minor offence he may be convicted of the minor
offence although he was not charged with it.
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A good example of this would be murder
where the facts of murder is there but can be reduced to a minor offence
(culpable homicide not amounting to murder) it is minor because punishment is
lesser where murder death is mandatory but for culpable homicide is life
imprisonment.
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Can be reduced to culpable homicide when?
When he raised a defence example self defence and grave and sudden provocation.
6.
PP v Francis Dang Anak Nuya [1988] 1 MLJ 89
MULTIPLE
CHARGES
A. Withdrawal of charge
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We have seen the exception apply where
example 10 charges, 1 trial.
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If 1 is caught, can the other charges be
withdrawn?
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Withdrawal of remaining charges on
conviction of one of several charges – s.171(1) CPC
§ If there is more than one charge and A is convicted on one or more charges,
the prosecution may, with consent of the court, withdraw the other charges
§ The court may also on its own motion stay the inquiry or trial of those
remaining charges
7.
PP v Syed Feisal [2007] LNS 120
§ Such withdrawal has the effect of an acquittal of such charge or charges –
s.171(2) CPC
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For s.171 to apply,
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With the consent of court the withdrawal
amounts to acquittal but here
B. Outstanding offences – s.171A CPC
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If there are many charges against A, at
the end of the trial on one charge, the court may take into consideration any
other outstanding offences which have been admitted by A when sentencing,
provided that both the prosecution and A consent to this measure – S.171A
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Example there are 3 charges, he can claim
trial for 1 and plead guilty for the other or alternatively. Example after
trial there’s conviction, there’s still 2 charges which is PG (goes for
sentencing) but the one in trial go to conviction and sentencing, the court can
consider other offences but with the consent of accused because in order to do
this, à lead to aggravating the offence
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When the consent is given, court has to
record it so that court won’t offend s.171A(2) there is safeguards for the
accused here.
8.
Abang Zailan v PP [1992] 1 MLJ 225
*recap we have looked into charge (please check back on the list covered):
1.
what must be there in a charge
2.
what happens if there’s an error
3.
amendment of charge
4.
general principles (1 charge 1 offence)
5.
the exceptions to the GR (4 exceptions)
6.
conviction for an offence not charged
7.
multiple charges
8.
outstanding offences
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