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Joinder of Offences & Charges
JOINDER OF
OFFENCES AND CHARGES
1.
Rules against duplicity
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Where there is more than one offence in
one charge, we say the charge is duplicated.
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Section 163 CPC
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Every distinct offence must be mentioned
in a separate charge – first limb of s.163
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This means that for one distinct offence
there must be one charge and for two distinct offences, there must be two
charges
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When two offences are committed and they
have no connection with one another, they are distinct offences
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For example if offence of grievous hurt
and theft are distinct offences – illustration to s.163
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Hence the rule is often termed as the rule
against duplicity,, which is a prohibition against introducing more than one
offence in a single charge
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There are numerous categories of distinct offences
but three obvious categories are:
·
Offences provided under different sections
of the PC or any other penal statute
·
Offences provided under the same section
of the law but committed at different time or on different occasions
·
Offences committed against different
persons or victims
EFFECT OF DUPLICITY
A.
Mere irregularity that can be cured
1.
Lee Ching Kee v PP [1935] 1 MLJ 157
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Two offences in the same charge, dealing
and coveying
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Refers to commentary of Indian criminal
procedure
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Two offences in one charge bad for
duplicity
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Can find the principle in s.163
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Accused was not prejudiced
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So conviction was affirmed here
B.
An illegality that cannot be cured
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This is usually in traffic offences
usually either negligence or reckless where the elements are different. You can
charge in the alternative, either one to be charged if cannot succeed in one of
it
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Cannot say in the charge reckless and
negligence
2.
Jagar Singh v PP [2936] MLJ 114 COA
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Two offences, bad for duplicity, should
have a charge in the alternative
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One charge may have two offences but in the alternative would
be ok but if you have one offence + another offence not in alternative = bad
for duplicity whereby it is illegality and cannot maintain such conviction if
there was conviction made
-
Here case of reckless and negligence
3.
Yap Liow Swee v PP MLJ 225 COA
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Follows Jagar Singh sayin irregularity
cannot be cured
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Burden of A to prove that there has been a
failure of justice
4.
Muthan v PP [1947] MLJ 86
C.
No prejudice and no failure of justice
5.
See Yew Poo v PP 1949] MLJ 131
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Appellate decision here, court said
offence should be separate charges
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Here irregularity that can be cured under
s.422 because no prejudice and no failure of justice (these concept easy to say
difficult to apply so quote on the facts)
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Why there was no failure of justice? (use
facts to prove and relate it)
6.
PP v Mohamed Fathi [1979] 2 MLJ 70
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Judge discuss on s.163 principle and
exception in s.153(2)
DISTINCT OFFENCES
7.
PP v Norzilan 1989] 1 MLJ 442 (READ THIS)
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Drug trafficking case where it was found
in her house in 3 different locations; 1 middle room, kitchen and backyard
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The house was rented by a number of
person, friends etc so question of who has possession of the drugs because
possession more than statutory weight becomes trafficking so in that situation
DPP must prove that the accused has possession to the drugs but in a house
shared by many people may be difficult to prove
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Eventually first accused had been charged
in respect of the room in the middle of the house but according to evidence,
his room is in the first room and has no access to middle room, so person no
exclusive access to the room would be difficult
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Important here is on the opinion of the
judge where the drugs was found can be subject of different charges against the
person who has exclusive possession to the venue where the drugs were found
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Offences were lumped into one charge, but
the charge proceeded with the middle room
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So because of that prosecution case was
limped
8.
Mahendran Manikam v PP 1997] 1 CLJ Supp 473
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Raping, same victim on two different
occasions and should have two separate charges for two offences at two
different places
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Court held to be two distinct offences
should have 2 separate charges
-
Talking about the general rule here, more
than 1 offence in 1 charge
9.
Datuk Haji Wasli [2006] 5 MLJ 172
10. Leken @ Delam v PP [2007] 3 MLJ 730
EXCEPTIONS
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4 exceptions to the second limb, first
limb has one exception s.153(2) not in s.163 where the charge can contain more
than one offence if in relation to CBT and dishonest misappropriation of money.
It must be committed within one year for this both to relate, if it falls out
of it, cannot be subject to one charge.
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Charge only need to mention to gross sum,
several CBT is possible too.
11. Sheikh Hassan v PP 1940] MLJ 69
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The gross sum in 1939 is 23 dollars
received on separate occasions every occasion 1 dollar
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Syariah law may allow nikah twice but
under our Malaysian law, cannot nikah dua kali, if have not registered, go to court and
register it
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Here there was CBT
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Was a good charge falling under s.153(2)
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23
offences of CBT – 1 charge
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||
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Dates of
offence between 1/2/1938 and 31/1/1938
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Offences
punishable under s.409 PC
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Gross sum
$23
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12. PP v Mohamad Fathi [1979] 2 MLJ 70
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4 forgery offences on documents, so does
not fall under CBT therefore à 4 offences
each for one document, different occasions therefore 4 charges of forgery à later reduced to 3 amended charges à later reduce to 1 (3 charges telescope) à but the court said charge was bad for duplicity but curable under s.422
because accused understood the charge against him for 4 documents & forgery
13. PP v Shably [1992] 2 CLJ 1269
Rule against joinder of charges
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Every charge must be tried separately
second limb of s.163
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One charge, one trial and every A must be
tried separately
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The rationale is that court and A will not
be prejudiced by a multitude of charges at one trial
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When it contrives, there is a misjoinder
of charges
14. Subramaniam Iyer (1901) 28 IA 257
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Misjoinder is an illegality
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The Privy Council was unable to regard the
disobedience to an express provision as a mere irregularity because such a
phrase is not appropriate to the illegality of trying A for many different…
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Exceptions to the rule against joinder of
charges
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There are 4 exceptions to the rule
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These are provided in s.164, 165, 166 and
170 CPC
EXCEPTIONS
FIRST EXCEPTION – S.164 CPC (more than 1 not more than
3)
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The elements in s.164(1) CPC are:
1.
1A
2.
More than 1 offence
3.
Offences are of the same kind(s.164(2))
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This offences fall into 3 categories;
punishable with the same amount of punishment under the same section of PC or
any other law
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Offences punishable under s.379, 380, 382,
392, 397(offences relating to theft and robbery)
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Offences under any section of PC or any
other law which shall be deemed to be offences of the same kind as attempt to
commit such offences when such attempt is an offence
4.
Offences are committed within 12 months
5.
Victim may be the same r not and
6.
Number of charges joined must not exceed 3 charges
SECOND EXCEPTION – S.165 CPC
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Provide for 3 exceptions: series of act (example
shoots and robs) so there are 2 offences, 2 charges can put into 1 trial, 1
accused.
· Where the acts committed are so connected together as to form the same
transaction –s.165(1) CPC
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The elements to be fulfilled are; 1 A,
more than 1 offence, offences are committed by a series of acts so connected
together to form the same transaction
15. R v Shahapurkar ILR 30 Bom 49
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transaction means carrying through, this suggests
not necessarily proximity in time so such as continuity of action
and purpose. In order that a number of acts may be so connected together as to
form part of the same transaction, community of purpose of design
and continuity of action are essential elements. In Shahapurkar, there was
proximity of time but what is more important is the continuity of action and
purpose or there is a community or purpose
16.
Amrita Lal Hazra v Emperor 42 Cal 95: there is
no definite formula which may be applied to all situations to determine whether
two or more acts form the same transaction however the matters which ought to
be considered are:
·
Proximity of time
·
Unity or proximity of place
·
Continuity of action
·
Continuity of purpose or design
17. Cheong Sik Kwan [1955] MLJ 236 COA
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CBT 4 situations of accounts but were in
the same transactions, there was continuity of purpose or community of purpose
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Then court explained the law (good
judgment)
18. PP v Rizuan [1996] 2 CLJ 346
19. Shaafie Saibi [2007]
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What is not the same transaction?
20. Seng Sai Kee [1940] MLJ 246
21. Datuk Wasli
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Putting in fear of injury, at the same
time there was connection of theft, not connected in any way
22. Chin Choy v PP [1955]
·
Where the acts constitute an offence in
more than one provision of law – S.165(2)
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Stage of proceeding to determine ‘same
transaction’
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When the charge is framed not at the end
of trial
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If A’s acts constitute an offence within
two or more separate provisions of law, then he may be tried at one trial for
each of such offences see illustration (g) – (j)
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The court is at liberty to impose a punishment
for each offence, provided that the total amount of punishment does not exceed
the maximum for any of the offences
23. Lim Ong Lum v R [1926] SSLR 152
·
Where the acts are individual offence but
when combined together constitute another separate offence – S.165(3) CPC
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Hybrid like - illustration (k)
THIRD EXCEPTION – S.166
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The elements are: 1 A, more than 1
offence, offences committed in a single act or series of act
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The situation here is where the facts are
certain but offences are not
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The prosecutor is uncertain under which offence
the facts will fall under
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In such event, the DPP can refer the
answer provided under s.166 as well
· A may be charged with all or any of the offences and any number of the
charges may be tried at once OR
· Charged in the alternative (judge will give advice and observe here and
refer to illustration (a) & (b)
24. Hassan bin Isahak v PP [1948-49] MLJ
25. PP v Abdullah Ambek [1984] 1 CLJ 189
26. Chan Chan Seng v PP [1932] MLJ 107
FOURTH EXCEPTION – S.170 CPC
-
Joiner of offenders [(164 is joinder of
charges, 165 is also joinder of charges1 A several offences) s.165 can have
more than 3 offences & charges, but 164 confined to 3 within 1 year]
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170 is on joinder of offender, more than 1
accused in 1 trial
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It provides for 2 situations where if the
court thanks fit , it may follow more than one A to be tried jointly
· Where they are accused of committing the same offence or different offences
in the same transaction and
· 
Where one is accused of committing an offence
and the other of abetment or attempt to commit the same offence
Where one is accused of committing an offence
and the other of abetment or attempt to commit the same offence
27. Teja Singh v PP [1950] MLJ 71
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One if for bribery, the other for abetment
of bribery, police officer involved.
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1 trial;
2 Accused Persons
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1st
A was charged for abetment of corruption
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2nd
was charged for committing corruption
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28. Tan Kheng Ann [1965] 2 MLJ 108
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There was a detention centre there and
there was rioting there
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The issue whether same transaction or
otherwise or different offences (read case)
29. Manikam v PP [1947] 90
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Here court said should be separate trial
and not joined
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Accused person jointly tried on criminal
trespass but different day, offence may be the same but there should be
separate trial for different accused person because not in same transaction
Section 170(2)
-
This provides for 3 categories of offences
for joinder of offences:
· Theft, extortion, CBT, cheating or criminal misappropriation
· Receiving or retaining or assisting disposal of property and concealment of
property, possession of which has been transferred after such offence is
committed by the first named persons
· Abetment or attempting t o commit an such last named offence
We have 4
exceptions in total, so how to apply?
Lim Yean Leong v PP – s.165(1) (not limited to 3
charges therefore trial no3 can include forgery) here 163 & 164 also can
apply
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25/1/1938
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26/2/1938
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19/4/1938
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·
1offence of CBT
·
2 subsidiary offences of altering a/c
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·
1 offence of CBT
·
2 subsidiary offences of altering a/c
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·
1 offence of CBT
·
2 subsidiary offences altering a/c
·
1 offence of forgery
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LIM YEAN LEONG V PP – S.164
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Trial 1
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Trial 2
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Trial 3
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Trial 4
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·
3 charges of CBT
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·
3 charges of altering a/c
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·
3 charges of altering a/c
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·
1 charge of forgery
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Mutually cumulative/ mutually exclusive, = if one exception
applies, the others are not excluded, meaning more than 1 exception can be applied
to the given situation with the result that you will see 10 charges can be in
on trial. Mutually exclusive can use 1 only and cannot use the rest.
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1 TRIAL;
10 CHARGES
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s.164 CPC
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s.165(1)
CPC
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