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Details, Errors & Amendment In A Charge
FORM
§ Charge is a notice to A which must be conveyed with sufficient clarity and
certainty
§ The law on the form that a charge must take is captured in S.152-154 of CPC
which states a charge must-
ü State the offence with which A is charged
ü The law and the punishable section of the law
ü The time and date of the offence
ü The place and the particulars of the thing and
ü The manner in which the alleged offence was committed if particulars are
sufficient
Example, cheating in PC is more general than theft.
Theft is there in the Penal Code, so refer to that definition of theft unlike
cheating and therefore we say when there is a charge on cheating, the manner
must be stated in the charge, how A cheated B has to be stated in the charge.
The offence
§ A charge must state the offence with which A is charged – Section 152(1)
CPC
§ If the offence created by law is given any specific name, the offence may
be described in the charge by that name only (Section 152). Example offence of
theft is a specific name so use the word ‘Theft’ in the charge.
§ If there is no specific name, then so much of the definition of the offence
must be stated as to give A notice of the matter with which he is charged
(Section 152(3) CPC)
§ Then the law and section of the law must be mentioned in the charge –
Section 152(4) CPC
Sometimes you find the name (offence) not mentioned
but the punishment section is mentioned, but may not be fatal because the
punishment section also refers to the offence and this is a clear indication.
So this would not amount to the accused being confused or mislead to what he is
charged for. Go back to the principle that the accused must be notified of the
offence. Provision can also have different degrees of offence and the
punishment may be different therefore sometimes, when mentioned there, may not
be the same, can be separate and distinct offence.
Sufficient
Particulars
§ The particulars of the place, time and date of the commission of the alleged
offence must be stated – Section 153(1) CPC
§ The particulars of the things must also be stated – Section 153(1) CP.
Example, to make, calibre a serial number of the pistol or to make, colour and
registration number of the vehicle
§ If the particulars under Section 152
and 153 are insufficient, the manner of the commission of the alleged offence
must be stated – Section 154 and illustrations (a) – (f) CPC
If refer to Section 153 (pg 219): Example cheating,
there are many ways of cheating, so should state the manner.
1. PP v Chung Tsun Tin
-
To identify with clarity and certainty so
that accused can prepare defence. Because if there is no such clarity of
certainty, it can be said that the accused has been prejudiced.
-
“It is fundamental principle of criminal
law that the accused should be informed with certainty and accuracy, the exact
nature of the charge brought against him, otherwise he may be severely
prejudiced in his defence. He can be convicted only on proof of particular
offence so specified. For this purpose, the judge cannot go beyond the exact
wording of the charge inclining the accused guilty.
The charge stands or fall with the wording of the
charge, when there is amendment to the charge, the charge stand as amended and
not the original charge. That’s why they use the term “as amended”, court must
look at it and bound by it as well.
Omission to
frame charge
§ No finding or sentence pronounced or passed shall be deemed invalid merely
on the ground that no charge was framed unless the appellate court opines that a
failure of justice has been caused. – Section 421 CPC
§ Failure of justice: accused may not know for certain what was the offence
against him unlike when there is something written there. It can be without a
proper written charge, PO goes before magistrate à says it orally à magistrate
write it down in his notes of proceeding/notes of evidence. But it is still an
oral charge against accused which is now seldom. But the principle here is a
safeguard when there is no framed charge or written charge. Conviction would
not be affected and can stand IF THE ACCUSED IS NOT PREJUDICED.
In order to start proceeding, charge must be there and
explained to the accused. Failure of justice normally occurs when accused not
explained of the charge against him. *Take note on the summary trial part*
2. PP v Margarita B Cruz [1988] 1 MLJ 539
-
Charge was under Passport Act, provision
can be difficult but not an excuse to not framing a proper charge
-
PO should seek advice from PP. The duty is
not on PP or PO but there is also duty on the part of Magistrate
-
M need to look at the charge and determine
if it is a good or bad charge, step in and inform DPP
3. PP v Wahab [1991] 1 MLJ 218
-
The charge is framed in BM but the PC is
in English, so the offence was provided in English
-
Judge did not buy this whether English or
BM, the basic principle is that the judge must inform the accused of the
alleged offence and has to be explained to him. So even if in BM, when
explained to the accused, and he understood it, cannot be said to have
prejudiced the accused.
-
Key word is “understood”. Hence here no
failure of justice.
4. PP v Ahmad Shafie [1988] 1 MLJ 255
-
Supreme Court case, section 39B for
mandatory death. The judge did not use the word in the section.
-
Some of the words omitted, where the words
“on his behalf…” now to determine in such drug trafficking offences, would it
be fatal? Try to frame charge with words of provision as close as possible for
safest, but if omitted, see whether fatal and would cause it to be defective
only if fatal
-
Here the words omitted weren’t important,
the word “traffic” is there, so not fatal.
5. Pang Neng Tiong [1988] 1 MLJ 339
-
Refer to Sec.397 PC for the offence of Robbery
and refer to Section 5 11 (attempt to commit offences punishable with
imprisonment)
-
Court also don’t understand the reference
of the 2 sections connection and is confusing n the punishment of offence
-
This is a sample of bad charge. But there
are procedures for amendment. Punishment and offence needs to be connected
example from the punishment provision can identify the offence but here it wasn’t
the case.
-
Law requires punishment to be informed by
the accused
6. AB Malek
[2002] 4 MLJ 84
-
Here talk on rape, S.376 PC. There are few
limbs under there, here no need to refer to offence because punishment has
already been mentioned here with its specific name
-
So if the charge only mentioned 376 is not defective even if there ‘s nothing
mentioned on the offence because it has mentioned in the punishment provision
-
In this case, punishment stated but not
the offence, so judge said not necessary to state 375 specific name because
rape is rape when there is penetration against will, without consent = rape
-
If before penetration there was consent
but at the point of penetration women said no and still penetrate, that is rape
according to our law or there was force.
-
Judge held elements of rape is already
there and the facts has showed and it is not necessary to show under which name
the offence has been alleged to be committed
7. Uthayakumar [2003] 5 MLJ 433
-
Judge under S.506 PC (punishment for
criminal intimidation) if we look closely as the court here identified it,
there are 2 limbs which are distinct and separate: leads to a simple
intimidation & more serious intimidation. So question of which accused is
accused for?
-
PP has to be mindful to select it falls
under which limb. So this is a disintinction with Abdul Malik because there
the judge said rape is rape without consent, with force, against will but here
there are 2 different degrees of criminal intimidation so the accused cannot be
prejudiced and need to know which one is preferred against him.
-
But if you don’t know which one to prefer,
the judge and defence would say they are confuse hence it will be a bad judge
8. Law Kiat Lang v PP 1966] 1 MLJ 215
-Date of offence not always essential unless material part of the offence
9. Ho Ming Siang v PP [1966] 1 MLJ
252
10. PP v DSAI [2001] 3 MLJ 193
-
First sodomy case here, the main witness
who is the victim himself claims to have been sodomised but he raised several different
dates of incident when he testified on different days
-
He claims to be away and was a busy man so
the diary can be important which was not brought into court because could not
be found
-
He is entitled to know with certainty what
was the date for his defence and the victim changes date and so witness was not
worthy of credit and set aside
-
Fair enough English law say time is not
important since last time but our provision provides that time and date should
be mentioned there so we should be guided by our law than to use other
jurisdiction where the law not pari materia
with our law.
11. Hashim bin Mat Isa v PP [1950] 1
MLJ 94
12. Khoo Kay Jin 1964] 1 MLJ 22 compare with LCH
13. Lim Chin Huat v R [1963] 1 MLJ 314
-
It is a Singapore case
-
For cheating deception, it was not a
defective charge but good charge because manner of deception was mentioned in
the charge and how to mention so? This case provides a good example
14. Lim Chai Seng [1956] MLJ 236
15. PP v Abdullah bin Pandak Hassan
[1975] 2 MLJ 276
Errors in Charges
What happens if charge contains errors?
Refer to Section 156, not material unless A is misled.
If A is not misleading, even though there are errors in the judge, the errors
are not material. There should be mislead and failure of justice. Example like
civil procedure, if you don’t follow rules, it becomes irregular which can be
cured or may not be cured due to misled + failure of justice then the charge
cannot be saved. Failure + misled = charge cannot be cured. If error can
be cured, charge can stand and the otherwise.
If there are error and the court or judge explained to
accused and he understood, even though there is error accused cannot say he has
been misled especially when there is a lawyer for him. Otherwise the interest
of justice cannot be upheld.
Effect of
Errors
§ The CPC, like all procedural laws, is designed to further the ends of
justice and not to frustrate them by the introduction of endless technicalities
§ A is likely to get a full and fair trial by a competent court, if he is
told and clearly understands the nature of the offence for which he was charged
for
§ In the case against A is fully and clearly explained to him and he is
accorded a full and fair opportunity to defend himself, then mere mistakes in procedure,
mere inconsequential errors and omissions are regarded as curable by the CPC –
Section 422 CPC
ü The trial is therefore not vitiated unless A can show he has been
substantially prejudiced
§ An error or omissions in a charge is not material unless
ü
A has in fact been misled by it
A has in fact been misled by it
ü There has been a failure of justice } Conviction cannot stand
ERROR IN CHARGE
Example the charge is confusing, lack of certainty and
clarity for accused to raise defence. 3 situations where the defect can be
cured or otherwise and showing how it can be cured depending on whether it is
fatal or otherwise.
Burden on A
1. Low Seng Wah 1962] 1 MLJ 107
-
Burden is on the A because statute doesn’t
provide so who has burden to prove that accused has been misled, so this is
where the case law comes in to explain because provision silent on the burden
to proof.
-
There was an omissions of essential nature
but if the accused has not been misled, then it doesn’t matter and if there is
conviction, the conviction can stand and if there is no failure of justice
-
The question of whether accused has been
misled when there was an essential omission, defence party could show it was
essential but did this lead to accused being misled? Led to failure of justice?
-
Court referred to section 156 CPC and
further said to succeed need to establish 2 things:
(i)
Essential
(ii)
Misled
-
From this statement showing the accused
has been misled and accused has the burden.
Charge Curable
Under S.422 Of CPC
2. Gunalan [2010] 7 MLJ 490 HC
-
The charge was defective for failure to
refer to section 34 (in furtherance of common intention more than 1 offender)
but here the defect is merely an irregularity which is not fatal and curable
under Sec.422.
-
Punishable section here was wrong so the
charge becomes defective but curable
Not Curable
Under Section 156 & Section 422 CPC
3. Periasamy [1993] 2 MLJ 551
-
Where your charge doesn’t disclose any
offence (as provided by law) then it is fatal
-
The charge that does not disclose the
offence is known as illegal charge
-
Words from the case report “the charge as framed against the accused
persons was defective as disclosing no offence in law since S.148 of the Code
does not deal with the use of a deadly weapon in a riot which is likely to
cause death. The said section makes no reference to the use of a deadly weapon
nor does t provide that the weapon must be such that f used it is likely to
cause death”
-
In here, the judge referred to the Indian
Penal Code not Malaysian Penal Code provision
-
In this case was a riot (mengamuk) with a
weapon which falls under Section 148. But the charge seems to refer to rely on
S.148 of Indian Penal Code which is about riot as well but here it is with the
use of a deadly weapon, there is a big difference here, hence fatal defect.
4. Shawal [2006] 4 MLJ 334
-
This was concerning Immigration Act and
the judge did not disclose the offence under this Act so wanted it to be
curable under Section 156 but was said S.156 only to cover technical error and
not substance of it
-
156 provides cure should there be
non-compliance with technical provisions of the law and since here substance
was of issue, held not curable under S.156 CPC
-
Where judge does not disclose offence
under provision of the law, the judge is illegal or judge is fatal and cannot
be helped by s.156 and s.422 because it is fundamental for the judge to state
the offence (how to draft charge requirement)
-
Then referred case of Leong Yoon Meow
Thomson J which is LANDMARK CASE
AMENDMENT
OF CHARGE FOLLOWING DEFECTS
§ The rules governing amendment of charges contained in s.158 – s.162 of CPC
where court may alter or add to any charge at any time before judgment is pronounced
because when judgement is pronounced the court is FO.
§ Every alteration or addition must be read and explained to A – S.158(2) CPC
§ The amendment has to be done by the prosecution because that is the
prosecution’s document
§ Not duty of court to amend because court is neutral but there is a stage
where the judge can amend the charge if the evidence show prima facie case for
another offence and not for offence stated in the charge: s.173(h)(ii)
5. Heng
You Nang [1949] MLJ 285
6. Oh Keng Seng [1980] 2 MLJ 244
-
It is a sedition matter, at lower court,
didn’t make specific reference to speech made by accused which is seditious so
court considered it as defective but at federal court they said the judge was
not defective, the seditious part are for the court to decide not for PP to
point out. It is not necessary to show which part seditious, take the whole
thing and let the court decide from the words to determine which part is
seditious.
-
At the trial court, the trial judge heard
argument by the lawyers then said the judge didn’t refer to specific
statement the court here requested them
to underline the ones which are seditious and the act of underlining itself
highlighted to the defence which part to the statement made by the accused were
seditious this amounts to an amendment. This was directed by the court not DPP.
-
For charge of sedition, the charge doesn’t
have to identify which part is seditious.
-
There was amendment here done by court and
not at the instance of the prosecution
-
Here suggested court can amend even though
DPP didn’t make application to amend
7. PP v Francis Dang [1988] 1 MLJ 89
-
This is amendment to substitute murder to
culpable homicide not amounting to murder.
-
At the beginning of this trial, DPP
indicated that the accused intended to plead guilty to the lesser offence of
culpable homicide not amounting to murder and sought guidance from judge
whether the prosecution should file an amended charge
-
Judge said s.158 & s.159 must be
complied with to amend charge
-
Here it was the PP who seek guidance from
the court
-
So becomes amended charge and no longer
original charge
So, when there is amended charge, it will
stand as amended charge so if now there is amended charge, it has to be read
and explained to accused again as if it is an original charge and this applies
to every amendment.
As general rule it is for PO to apply for
amendment but then under provision of CPC s.173(h)(ii) allows court to amend charge where evidence show prima facie
case of another offence. Must satisfy beyond reasonable doubt on prosecution
side of the case.
8. PP v James Tan [1983] 2 MLJ 173
AMENDMENT
OF CHARGE STEPS
1. After charge has been amended need to call A to plead and state whether A
is ready to be tried on the charge – S.159 CPC
2. If accused declares not ready, court must consider his reasons an then
decide whether to proceed with the trial
3. If proceedings immediately with the trial is not likely, in the opinion of
the court, to prejudice A in his defence or the prosecutor in the conduct of the
case, the court may proceed with the trial as if the new or altered or added
charge has been the original charge
4. If the amended charge is such that an immediate proceeding will prejudice A
or the prosecution the court may direct a new trial or adjourn the trial –
S.160 CPC
5. If the amended charge requires previous sanction of the PP, the court will
stay proceedings until the sanction of the PP is obtained s.161 CPC
6. If the charge is amended after the commencement of the trial, the
prosecution and A must be allowed to recall witnesses – S.162 CPC because now
referring to new amended charge not the original charge
7. DPP applies leave to amend but for the court to amend not amended by the PP.
PP only seek for leave to have such amendment. Although he has power to institute
and conduct, he cannot simply take things into his own hands only. It
specifically provides court is to amend.
WHEN TO AMEND/ APPLY FOR LEAVE TO AMEND?
The section
says may alter anytime before judgment is pronounced but case laws suggest that
when there is application to amend, should make at the latest prosecution case
there:
9.
PP v Salamah [1947] 1 MLJ 178
- proper time to amend is at the
close of prosecution case that is why S.173 allows court to amend at the stage
forming prima facie case on prosecution’s part
10. PP v Tan Kim Kang [1962] 1 MLJ 388
- S. 158 of CPC empowers a court to
“alter or add to any charge at any time before judgement is pronounced” it is
permissible under that section to alter the charge after the defence has been called.
AMENDED CHARGE TO BE READ AND EXPLAINED
10.
Singah [1973] 2 MLJ 109
- held that the omission of the
learned magistrate to read and explain the amended charges to the appellant was
an irregularity which was not curable by s.422 of CPC as it was contrary to a
statutory requirement & conviction of the appellant must therefore be
quashed and retrial ordered just because charge not explained.
11. Quek Ching Kim [1956] 1 MLJ 54
- The accused not there so how
can the charge be read and explained to the accused so the statement held:
- it was held that the charge was
wrongly worded as it alleged that the appellant had assisted in the management
of lottery whereas the provisions of s.4(c) of Common Gaming Houses Ordinance
relate only to “assisting” in the conduct of lottery
13. Hee
Nyuk Fook [1988] 2 MLJ 360
- There is on hard rule that it
is mandatory, need to look at facts and circumstances of the case because
nowadays accused is there during appeal stage and can be amended at that stage
- This is a leading case binding precedent
So if amendment done after defence case can be prejudicial to accused.
14. Palldas
Arumugam [1988] 1 CLJ 661
15.
Kamaruddin [2005] 5 CLJ 180
RIGHT TO RECALL AND EXAMINE WITNESSES
16. Subramaniam [2002] 7 MLJ 155
- Here there is no issue whether
provision is mandatory or directory unlike 152, so here depends on facts of
case
- HC expresses opinion that s.162
is mandatory provision in that the accused shall be allowed to recall any
witnesses. Since it was a mandatory provision, the trial was vitiated as a
result of the session’s court judge’s refusal…
17. Hj
Maamor [2002] 6 MLJ 668
18.
Msimanga Lesaly v PP [2005] 4 MLJ 314
19. Azhar
[2010] 6 MLJ 22
JOINDER OF OFFENCES AND CHARGES
§
Section 163 CPC provides for 2 general
rules
i. Rule against duplicity/rule against
joinder of offences (1 offence, 1 charge) and
ii.
The rule against joinder of charges/rule
against joinder of accused persons (1 charge, 1 trial)
§
Rules against duplicity:
1.
Every distinct offence must be mentioned
in a separate charge – first limb of s.163 CPC
2.
This means that for one distinct offence
there must be one charge and for two distinct offences, there must be two
charges
3.
When two offences are committed and they
have no connection with one another, they are distinct offences
4.
For example, the offence of grievous hurt
and theft are distinct offences – Illustration to s.163 CPC
5.
When two or more offences are mentioned in
a charge, the charge is said to be duplicated
6.
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.
There Are Numerous Categories Of Distinct Offences But Three Obvious
Categories Are:
a. Offences provided under different sections of the penal code or any other
penal statute
b. Offences provided under the same section of the law but committed at
different time or on different occasions
c. Offences committed against different persons or victims
Reasons of the rule
1. That A will not be bewildered in his defence by having to meet charges
which have no connection with on another
2. That A will not be accused of several charges at one time and
3. That the court will not be prejudiced against A by making it possible for
the prosecution to adduce a mass of evidence at the trial relating to various extraneous
matters
EFFECT OF
DUPLICITY
20. Lee Chin Kee v PP [1935] MLJ 157
21. Jagar Singh v PP [1936] MLJ 114
22. Yap Liow Swee v PP [1937] MLJ 225
23. Muthan v PP [1947] MLJ 86
24. See Yew Poo v PP [1949] MLJ 131
25. PP v Mohamad Fathi [1979] 2 MLJ 70
