Charges

Sample of charge

Form 27 Second Schedule CPC

purpose of a charge

• convey a message to A with sufficient clearness and certainty and the elements need to be proven by the PP so that PP can prove his defense

• also enable the court to know the facts in issue and what evidence should be led by the pros and the defense

Stages in a trial where amendment to charge can be sought

• ST - s173(h)(ii) - crt shall amend at the close of pros if - prima facie case on a charge other than what the A is charged of

• Mag should only make amendments if there is credible evidence in pros case to prove each ingredient of the offence

• s158 - crt can add or alter charge at any time before judgment is pronounced - must read and explain amended charge to A

• [Heng You Nang v PP] - power to amend lies with the court, not PP but it is the duty of PP to apply for amendment

• [Salamah v PP] - appropriate time to amend - at the end of pros case - but wording of s158 clearly states any stage

When should a court take initiative to amend the charge?

[Oh Keng Seng v PP]

• where the pros and A are silent on any amendments which should be made - the trial court should amend it -

• it is incumbent on the trial judge to scrutinize and determine whether appropriate charge has been brought against the A - if not - judge should amend it at the earliest possible stage

• from the beginning when the charge was being read and explained - if the court found it to be badly drafted - should amend it

Is failure to read and explain amended charge fatal?

s158(2) - need to read and explain

• [Hee Nyuk Fook v PP] - failure not fatal depending on the facts of the case - requirement should be directory , not imperative

• [Singah v PP] - original charge did not disclose the actual offence until it was amended by crt at the end of defense case - had the crt not done so - the trial would be a nullity - necessary to read over the charge and explain to A

• depends on whether such failure would result in the A not knowing the offence that he was alleged of committing and hinder his preparation in defense - cause him and counsel to be embarrassed - not knowing the nature of the charge

In amending the charge, the particulars of the offence is not included

• Name of A not required in s152 - s154

• s152 - charge must positively and precisely state the specific name of the offence/ definition, the law, the section of law and the punishment section

• s153 - time and place of the alleged person and the person against whom it was committed against

• s154 - s152 and s153 alone do not give sufficient notice - must read conjunctively - must also contain particulars of manner in which the alleged offence was committed

• see illus (b) - specific examples

• s156 - no error or omission in the charge shall be regarded as material unless the A was misled - burden on the A to establish that he was misled

• s422 - cure defectiveness - omission or irregularity x nullify - unless failure of justice

Can the P or A recall the witnesses after amendment of charge?

s162 - after charge amended, pros and A must be allowed to recall and examine witnesses

• [Subramaniam v PP] - failure to recall - occasioned to miscarriage of justice - nullify the proceedings

• [Yee Fok Chong v PP] - crt need to inquire into the reason why the party intends to recall the witness - if court thinks - witness is not material witness - may refuse the application to recall

when none of the illustration under s154 states whether the particular of manner needs to be included

[Long Bin Samat v PP] - s323 of PC - particulars included - FC doesnt find any problem in it -

• inclusion helps give A notice as to the offence they are alleged to have committed

failure to state time, date and place

-[Sanusi v PP] - inclusion of dates -to which the offence was committed - no need specific time - interpreted inclusion of ‘time’ as inclusion of stipulation of time

Is inclusion of a stipulation of a range of dates acceptable?

[Sanusi v PP] - sufficient to give notice - related to a date during that span of time - could not in any way prejudice the A in preparing his defense

[Ku Lip See v PP] - sufficient to give notice when coupled with sufficient particulars regarding the location as well as the manner the offence was allegedly committed in

General rule to joinder of charges

2nd limb of s163 - every charge shall be tried separately - when more than one charge heard together - joinder - can only be done if exceptions under s164-166 and s170 apply

s164 of CPC

• offences of the same kind - s164(2) - punishable with the same amount of punishment under the same section of PC - offences specified under s164(2) proviso - attempt to commit the principal offence

• committed within 12 months

• not exceeding 3 charges

s165

• charges which form the same transaction

• committed by one A

• [Amrita v Emperor] - proximity of time and place - continuity of actions, purpose and design

when it is doubtful which several offences the facts which can be proved will constitute

• s166 - may be charged with having committed with all or any of the offences - try any number of charges at once -

Is it possible to use two exceptions together?

Lim Yean Leong v PP - yes - exceptions are mutually cumulative - not exclusive

s165(2)

• charge constitute an offence in more than 1 provision of law - see illus g and j

s165(3)

• 2 separate offences combined constitute another offence - illus k

s170

• 2 or more A commit offence in the same transaction

  OR

• one A is the principal and the other abets or attempts

• s170(2) -categories of offence that can be charged and tried jointly - theft, extortion, CBT, cheating, criminal misappropriation - receiving or retaining or assisting in disposal of property - abetment or attempting to commit

Misjoinder of charges

PP v Ridzuan Kok - illegality that cannot be cured under s422 - any conviction that follows cannot be sustained - may order for retrial - set aside conviction

duplicity of charge

• distinct offences framed in one single charge - recklessly and dangerous driving

Is duplicity curable?

[Sew Yew Poo] -

• curable if the charge contains 2 separate offences which could have been proceeded on 2 separate charges in one single trial (see s153(2) CPC) - mere irregularity - curable by s422

• not curable if the charge contains 2 separate offences which could not have proceeded at 1 trial