Summary Note on Criminal Procedure Code : Charges
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Note on Criminal Procedure Code
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CHARGES
è General Concept
§
Charge=
A notice, which conveyed clearness and certainty, which PP intends to prove vs
the accused or of which he will have to clear himself.
§
Charge has to be read &
explained to the accused asked whether he understand & plead to such
charge.
§
If he kept silence, this is
equivalent to the act of demanding for trial / defence.
FORM OF
CHARGES
§
S172
of 2nd schedule (pg298):
Such charge must be signed by PP.
§
If he kept silence, this is
equivalent to the act of demanding for trial / defence.
§
S152:
1)
The charge shall state the
offence committed.
2)
Describe the specific name of the
crime if there is any
3)
If no name, define the crime as
to help the accused understand his charge
4)
The section of law for such an
offence must be stated
5)
Charge = that every elements for
such offence has been fulfilled
6)
If there is previous conviction
that wanted to be proven, the facts + date + place must be stated, and this is
for the purpose of increasing the punishment.
§
S153:
1) Charge must state the ‘time’ /
‘place’ / ‘the victim’ / ‘property that involved’.
2) In the case of breach of trust,
the ‘sum of money’ must be stated. The proviso stated that such charge relating
the BOT must be done within a year or else has to recharge (if there is more
than 1 offence committed in the same kind within 12 months, these may be
charged together as 1 offence.)
3) If the charge is relating to the
electronic publication, the place of publication and where is seen or heard or
read is material.
§
S154 & Illustration (b):
1) When the offence does not give
sufficient notice on the matter of the charge, the charge should be added with
particulars (manner in which the alleged offence was committed) to suffice that
purpose.
2) Illustration
(b): A is
accused of cheating B at a given time and place. The charge must set out the
manner in which A cheated B.
§
S155:
1) Every words used in the charge
must be relating to the offence committing.
§
S156:
1) Errors in stating the offence /
particulars in the charge are not fatal unless the accused is misled by it.
2) Such errors can always be cured
via S422.
§
S158:
1) Court has power to alter / amend
the charge at any time before the judgment is pronounced.
2) Every amendment has to be reread
and explained to the accused.
EG OF DRAFTED CHARGES
|
‘ That you, on or about the _5TH__
day of March at Taukeh’s farm, located at Jalan Murni in the
district of Keli in Perlis, committed murder by causing the death of one
named Siti and thereby committed an offence under section 300 of the
Penal Code and punishable under section 302 of the same’
|
THEFT
CHEATING
|
‘ That you, on or about the 2ND day of
___ at ___ cheated xxx by (specify the manner in which the cheating was
committed) and thereby committed cheating, an offence punishable under
section 417 of the Penal Code’
|
POSSESSION OF DRUGS
|
‘ That you on or about the ___ day of ___ at ___ were
found in possession of ___ grammes of prepared opium and thereby committed
and offence under section 9 of the Dangerous Drugs Act 1952 and punishable
under section 39A(1) of the same Act’
|
©
Case: Low Kiat Leng
Held:
The date of the offence
©
Case: Lim Beh v Opium Farmer
Held:
The offence must be stated precisely & positively, so that the accused may
know with certainty what he is charged on. This will enable him to answer the
charge in the best possible way.
©
Case: Margarita B Cruz
Held: The charge in this case
was appeared as if it had gone into the mangling machine. It is so badly
drafted. DPP and magistrate should read the provision in the Act which create
the offence.
DATE OF THE OFFENCE IN THE CHARGE
©
Case: Low Kiat Leng
Held: The date of the offence is
not always significant unless it us a material part of the alleged offence.
©
Case: Dato’ Seri Anwar Ibrahim [2004]
Held: the date of the offence as
if its stated within the charge would signify that such date is material and
significant for the alleged offence.
TO CURE ERRORS AS PER UNDER S422
§
Under this section, any error /
omission / irregularity in the charge may be altered unless it occasions a
failure of justice.
©
Case: Ishak Shaari
Held: As CPC is procedural in
nature, it is designed to further the end of justice & not to frustrate
them by introducing the endless technicalities.
AMENDMENT OF THE
CHARGE
§S158:
(Refer above)
§S173(h)(ii): If courts found that there is a prima facie for
another offence (not initially charge to the accused), to be in existence, and
the court is competent to try such case and is off the opinion that it should
try the case, the court shall amend the charge.
§S173(i): The charge amended must be read to the accused and
asked him whether he is guilty of the offence stated in such amended charge.
§S173(j)(i): If He
Pleaded Gulity –
© Court shall record such plea of guilty + convict the
accused + pass sentence according to law.
© PROVISO: However, to convict in such manner, court must
really sure that the accused understand the nature and content of the amended
charge.
§ S173(j)(ii): If He
Does Not Pleaded Gulity –
© The accused shall be called upon to enter his
defence.
§ S173(j)(iii): If He Is Called To Enter His Defence -
© The
accused shall be allowed to produce his evidence + to recall the witnesses +
cross-examine any witnesses present.
© PROVISO:
However if the accused is to be called as a witness, his evidence must be taken
down before other witnesses for the defence is being called upon.
© PROVISO: The
accused elected as a witness as mentioned above must be able to cross examine
on behalf of any other accused person.
©
Case: Heng You Nang
Held:
It is not the duty of court to amend the charge, as it’s for
the prosecution to apply for such amendment. S158 doesn’t impose a duty upon court to amend the charge. S173(h)(ii)
make it compulsory for the court to amend the charge if it’s necessary to do
so, but it is not mandatory on the court to find the law for the offences
committed by the accused. In a clear case where there is a need for the
magistrate to alter such charge, (S)he must do so.
©
Case: Oh Keng Seng
Held:
If PP and the accused silenced on the amendment that ought
to be done, court is on position to amend it.
©
Case: Tan Kim Kang
Held:
Court may amend at any time before judgment. The best time
is at the close of the case for the prosecution, ie follow the S173 (h), (i) an
d (j).
©
Case: Liew Cheok Hin
Held:
The best time to amend is that, ‘the better the earlier’.
However, it is at the close of the evidence for the Prosecution that is the
best position for the court to decide clearly on what is actually the COA is
the accused is required to meet.
©
Case: Letchumanan a/l Suppiah
Held:
As per S3 of CJA, no final order over the charge. Here, the
FC held that PP can always appeal vs the decision of the COA that ordered the
charge to be amended from trafficking to only possession.
PROCEDURE AFTER THE
AMENDMENT OF THE CHARGE
§ S158(2): The new amended charge shall be read + explained to the accused.
§ S173(i): The charge amended must be read to the accused and asked him whether he
is guilty of the offence stated in such amended charge?
EITHER:
§
S159: (PLEA) The court shall call
upon the accused to state whether he is ready to be tried based on such amended
charge. Then court may proceed with the trial immediately; or as stated
in S160: The court may adjourn the trial / order new trial with
the basis using such amended charge.
OR:
§
S161: (STAY PROCEEDING) –
compulsory to provide sanction.
§
S162: Witness shall be allowed to
be recalled.
§
S173(j)(iii): IF HE IS CALLED TO ENTER HIS DEFENCE - The accused shall be allowed to
produce his evidence + to recall the witnesses + cross-examine any
witnesses present.
©
So here, the accused and
prosecution have right to exercise the above mentioned rights.
©
Case: Yee Fok Chong
Held:
As per S162,
it’s a must for the party to recall the witness once the charge is amended.
Failure to execute such effect will nullifies the trial and it is amounting to
miscarriage of justice.
©
Case: Subramaniam Shanmugam
Held:
As per S162 it is a must for the court to grant the
right to recall the witness. The facts that in this case the learned judge has
ignored such application, and not even inquiring the reason for such
application is resulting a grave injustice.
1 OFFENCE = 1 CHARGE
§
S163: Diff offence must be
mentioned in separate charge / 1 offence = 1 charge ; Except for S153(2).
§
S153(2): CBT (Where the commission
of such offence more than once may be put together as in the manner prescribed
in S164)
1 CHARGE = 1 TRIAL
Except
for;
§
S164: If the accused committing
the same nature of offences within the period of 12 months, he may be tried &
charge together.
§
S165: For any acts that bring
about to more than one type of offences, such person may be tried at one trial
for every each of the offence.
§
S166: If there is doubtfulness
over the offence committed, the accused may be charged with having committing
all of the offences.
§
S170(1): When more person of the same
offence / committing the offence in the same transaction / one commit or one
abet = court may decide whether or not to set up the joint trial.
§
S170(2): For offence relating to CBT
/ extortion / cheating / criminal misappropriation / conceal or assist to
conceal for the disposal of property, these offences may be charged and tried
together.
©
Case: Monogaran Asian v PP
Held:
The decision to order the joint trial as per S163 /
S164 / S165 etc not a final order therefore not appealable.
DUPLICITY OF CHARGES
§
This occur when the 1st rule relating to the 1 offence, 1
charge is not being adhere to, except for S153(2) = CBT.
©
Case: Ridzuan Kok Abdullah
FOC:
In this case, the offences involved were diff from
each other, done upon diff victim, in diff times / occasions, and related to
diff sections of PC / Statutes.
Held:
Such duplicity is allowed as per the S153(2) of the CPC which said that for
CBT, its sufficient to specify the gross sum & dates which the offence is
alleged to have been committed without any need to state out the particulars of
the items & the exact date.
EFFECT OF DUPLICITY OF CHARGES
©
Case: Yap Leow Swee
Held:
The duplicity is said to be illegal & retrial was ordered.
©
Case: See Yew Poo
Held:
The duplicity is not an irregularity that can be cured under S422. It is and
illegality, thus making the OCA to quashed the conviction and order for
retrial.
MISJOINDER OF CHARGES
§
When the 2nd rule relating 1 charge = 1 trial is violated, and
all of the 4 exceptions did not applied,
such charges may be said as misjoined.
©
Case: Mohd Fauzi Omar v PP
FOC:
Here, the police has found the drugs to be in 2
diff locations. One in kitchen and another one in the room. The applicant here
claims that to combine both of the charges is jeopardizing him.
Held:
The duplicity is said to be illegal & the applicant should have been
charged in 2 diff charge.
©
Case: PP v Norzilan b. Yaacob
FOC:
There were drugs found within the house. There were 3 out of 6 residents in the
house, but only 2 of them were charged. The rest were taken as witnesses. All
of them were put in 1 charge.
Held:
Court held that, there should be separate charges be framed against the accused.
This case illustrated the example of misjoinder of irregularities. (Can be pure
via S422) The accused were acquitted as PP failed to prove the facts of custody
& possession of the drugs.
©
Case: See Yew Poo
FOC:
The accused has committed rob against 1 victim in two different locations.
Held:
Court held that, there should be separate charges for both of offence that is
done in different locations. But this irregularity can be cure via S422 as long
there is no prejudiced caused.
©
Case: Yap Leow Swee
FOC:
In this case, the bus driver has been charged as to be recklessly / negligently
driving the bud in the manner that was dangerous to the public.
Held:
The charge stated both allegation of being reckless & negligent. The PP
should prove one of them. The fact that the accused will be left in doubt if
the conviction is to be done, will cause prejudice to the accused.
JOINDER OF TRIAL
§
Involved exceptions stated in S164 / S165 / S170 / S166. (Refer above)
§
As long as the case fall within the above section, the trial is allowed
to be join into 1 trial.
©
Case: Chin Choy
Held:
Once the charges are tried together and it contravene to the CPC’s provisions
(not fall within the S164 / S165 / S170 / S166), this will be = to illegality and it cannot be
cure. Any conviction under this illegality cannot sustained,
JOINT
TRIAL
§
S170(1): When more person of the same
offence / committing the offence in the same transaction / one commit or one
abet = court may decide whether or not to set up the joint trial.
§
S170(2): For offence relating to CBT
/ extortion / cheating / criminal misappropriation / conceal or assist to
conceal for the disposal of property, these offences may be charged and tried
together.
CONVICTION
FOR OFFENCES NOT CHARGED
§
S167: This refer to S166 where the
situation raise the doubtful on the type of offences committed, but there is
certainty that it has been committed. Charge may be done for 1) only for 1
offence / 2) done for all offences / 3) alternatively.
©
Eg: Abu convicted for CBT /
Theft / Misappropriation of money. PP charged only for CBT. S167 allows Abu to
be convicted for other offence if it is proven to be true that he committed those
offences, despite the fact that only CBT is charged upon him.
©
Case: Lew Cheok Hin
Held:
S167 is an exception to a general rule that a person should not be convicted
for an offence that is not charged upon him. There are 2 tests for this:
1. The charge must be in the way
that it could have been framed & tried together as per S166.
2.
The
evidence must be presented in the way that it involved the same elements for
the offence involved. Here, the court has to satisfy itself that the evidence
raised by PP and defence team must be the same.
§
S168: If the accused has been
charged for an offence, he still can be charged for ‘attempt to commit an
offence’.
§
S169(1): If charge is only for major
part of the offence, but later or it is found out that there is minor offence
to be in existence. The accused still can be charged for it.
§
S169(2): If charge is only for major
part of the offence, but later it was proven that the accused has committed the
minor part of the offence, he may be charged for it despite the fact that he is
not charge for it.
WITHDRAWAL
OF REMAINING CHARGES ON CONVICTION OF ONE
§
S171(1): If the accused is convicted
with one offence, PP may apply to set aside other offences. Court may inquire
for such application.
§
S171(2): If the case went to appeal, the
conviction is set aside, the remaining charges will stand.
OUTSTANDING
OFFENCES WHEN SENTENCING
§
S171A(1): In deciding for the
sentence, with the consent from the PP and accused, court may consider to the
outstanding offence / offences in which the accused has admit to.
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