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The Charge
Starting point of criminal procedure is
the FIR, but it can be started off without FIR example Op Cantas it is viable intelligence. Generally it is FIR, it starts
the process we call as investigation and last semester it was all about the
investigation and processes involving investigation and search.
1.
Once investigation is completed
2.
Report to DPP with the investigation
papers (look at amendment of CPC it must be there)
For non seizable offence, you can go to
the Magistrate à cognisance à
examination à issue of process (Initiation) à
institution à prosecution (PO) + charge
à conduct à discontinuance à or can be
decision à conviction/acquittal à
mitigation/plea by prosecution àsentencing à appeal
PO can be officers from government
department example under Fisheries Act where he can prosecute as the PO. So the
part for Mr.Hafiz, we will be focusing on the charge. It is still pre-trial. Bail
can be pre-trial or post trial. Can be convicted and sentenced but can be out
in the society because he has bail waiting for the appeal. Otherwise the
convicted person will be in the prison serving sentence for remand.
1. Daphne Iking case
-
Ex husband prosecute the other man for
advising a married women from the lawful husband
Bial pending trial / Bail pending appeal
Samples of
charges are in Baljit Singh Book for Criminal Procedure in Malaysia.
Introduction
§ The charge is the first step in the criminal prosecution process
§ It is a definite allegation against the accused person, it reflects the
offence committed by the accused
§ When a person is said to be charged with an offence (prohibited by law), he
is in fact called to appear before a magistrate or judge and informed of the
charge or complain against him. It is one of the elementary principles of criminal
law that an accused person must know with certainty what the accusations against
him are before he is called to enter his defence.
§ A is entitled to be informed with sufficient clarity and certainty
to what offence has been alleged against him. Clear and certain enough for him
to know the offence. Example theft, theft at night etc, so I need to know what
am I accused of with certainty so that can be advised on rights and raised in
defence.
§ The word charge not defined in the CPC and the word normally not used in
other jurisdiction, in UK they use the word “Indictment” but it is widely
accepted that it is an accusation made against a person of an offence alleged
to have been committed by him. When you charge the person you are accusing him
of something that is why in Malaysia we call him as accused person. When there
is a charge the person is an accused person but can’t call so if the
prosecution is not by way of charge example if by way of summons, then refer as
OKS (Orang Kena Saman) not OKT.
§ Charge serves to be:
1. To inform or give notice which is clear and certain enough and this notice
tells the accused you are accused of … and I am going to bring my evidence to
prove this. For that accused person he is now aware of this and so prepare to
defence himself against the evidence. It is to inform him that the prosecution
intends to prove against him and he has to be clear himself.
2. An information to the court which to try the accused, of the matters to
which evidence to be directed
3. Inform A of the offence alleged against him and for him to prepare his
defence
4. Enable the court to know what evidence should led by both prosecution and
defence
5. Indicate the punishment to be imposed
6. Indicate jurisdiction of the court
2.
Mohamed Humayoon Shah v Regina
Sample charge 1:
§ Identity of person
§ Date
§ Time
§ Address (location/ scene)
§ Items, offence what is involved in the offence
§ State the law which was not complied with (example offence under what
Section of what Act)
Sample charge 2:
§ Example offence is criminal intimidation
§ Being accused of using a word
§ State punishable under which section, then prepare defence and advise
client what to expect if convicted
§ Indicates the jurisdiction, example the Court within Jurisdiction of the
location (example Sepang) if the court is given local jurisdiction, if court no
local jurisdiction, then follow jurisdiction of the high court. That is why it
says the charge indicates jurisdiction of court. Don’t knock on the wrong door.
General
Principles of the charge established in these cases:
3. Jagar Singh v PP 1936 1 MLJ 92
- In this case, there was a motor accident and the defendant had two separate
offences for in one charge, in fact it should have been separate and distinct. There
was a motor accident then thereby causing collision.
- The court held that English law and Malaysian law both allows more than one
charge but the matter here is that in Malaysia it can be an alternative charge
- There was also the issue on whether when the charge is framed in such a
way, it can amount to irregularity or illegality, and then the factor of
whether it can cause substantial miscarriage of justice comes in. If it causes
miscarriage of justice, would be an illegality.
- In this case, it was held by the court that there would be miscarriage of
justice and therefore the charge was an illegality hence void.
4.
PP v Lee Park [1939] 1 MLJ 265
5. PP v
Leong Yoon Meow** [1953] MLJ xxxv
- In this case was concerning the issue of essential details to be inserted
into a charge and here it involved the term “knowingly” which is important to
show intention and what not. The failure to include important and essential
elements forming a charge can be a defect to the charge making it invalid.
6. PP v Syed Bakri [1955] MLJ xvii
- This case followed the position of Leong as above which is also on the
issue of the word “knowingly” and that English cases cannot be much referred to
as their provision differs from the one in Malaysia on this matter.
7. PP v Margarita Cruz [1988] 1 MLJ 539
- In this case, the respondent was charged under Section 12(g) of Passport
Act for holding two other people’s passport without authority
- The charge here was said to have been drafted so badly and the Magistrate
should have ask for the charge to be corrected but did not do so.
- The respondent here pleaded guilty to the charge however she mentioned that
she was requested by two of her friends to hold the passport while they were in
Ipoh. Presuming if these facts were true, then how could it then fall under
Section 12(g) that she withholds the passport without lawful authority since it
was by the request of the actual owners to the passport.
- Therefore, the conviction was set aside and the judge informed the
prosecutor that it is up to him to start a fresh action considering obtaining
the necessary authorities.
8. PP v Chung Tshun Tin [2008] 1 MLJ 559
- In this case, there was a charge for an offence under the DDA, and under Section
2 of the Act it provides for what are the elements which have to be fulfilled
and requirements that are to be specified in the charge. However in this case,
there was a fatal defect in the charge which did not provide with specific
details as laid down by the Act and failing to comply will invalidate the
charge.
- Therefore in this case, with such a defect on the charge, the court
exercised its given discretion to allow amendment to the charge to ensure it
complies with Section 2 of the Act in concern. Since this is involving capital
punishment for the issue of drugs trafficking, the court is taking strict steps
to ensure justice is served.
9. Datuk Haji Wasli v PP [2006] 5 MLJ 172
- In this case, Dato Wasli had two charges preferred against him for
corruption and he contended that the charge was done in bad faith, malicious, scandalous,
and oppressive and it was an abuse of court’s process.
- The court here however decided that, the delay in initiating the charge by
the PP was of no oppression and in fact is a power given to him under Art
145(3) of the FC for his power to initiate an action and it concerns charge
preferred onto a person as well. On top of it, there were reasonable reasons
given to the court as to why it amounted to the delay and the court affirmed
it.
- Hence, there was said to be no charge made in bad faith to void it. The PP
has the power when to prefer the charge against a person.