Chapter 9 - Charges Flashcards

Question

RULE AGAINST DUPLICITY General rule & meaning of rule against duplicity

Answer 1

1) General rule: S.163 - distinct charge for separate offence. 2) Meaning of duplicity of charge: - Two offences (i.e. two actus reus committed in different occasions / involving different victims), but only one charge is framed against the accused to convict him for both offences. 3) Meaning of rules against duplicity: - One offence = one charge, two offence = two charges etc. - Prohibits the inclusion of more than one offence in a single charge.

Answer 2

1) The law: - S.153(2) 2) Exception 1: - S.406-409 PC: CBT 3) Exception 2: - S.403 - 404 PC: Misappropriation of 4) Scope of exceptions - Aisyah Mohd Rose & Anor v PP (CA, 2016): S.153(2): - For CBT, it shall be sufficient to specify the gross sum and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates. - The section prevailed over the general provision in s. 164 CPC. S.163: - For every distinct offence, there shall be a separate charge. OTF: - In the instant appeal, there were no distinct offences but only the offence of criminal breach of trust. - Therefore, there is no violation of S.163.

Answer 3

1) See Yew Poo v PP: - the duplicity of charges was merely an irregularity which can be cured under S.422; - this is so provided that the accused was not prejudiced and there was no failure of justice. 2) Mahendran a/l Manickam v PP: - the duplicity of charges will be treated as mere irregularity; - this is so unless the duplicity consisted of two alternative charge in the charge and it is important for the accused to know with certainty what he was charged and convicted for.

Answer 4

- Drugs discovered in two different places in the same bag (e.g. airport & police station) is considered as one offence. - Drugs excreted at two different times & places are considered as one offence.

Answer 5

1) The law & scope 2) General rule & meaning of misjoinder of charges 3) General exceptions & scope 4) Exception 1 - S.164 5) Exception 2 - S.165 6) Exception 3 - S.166 7) Exception 4 - S.170 8) Effect of offending the rule against misjoinder of charges

Answer 6

Second Limb of S.163: - Every charge for distinct offence should be tried separately.

Answer 7

1) General rule: - Every charge for distinct offence should be tried separately. 2) Meaning of misjoinder of charges: - The charges are tried together in one trial. 3) Meaning of rule against misjoinder of charges: - One charge = one accused = one trial.

Answer 8

1) General exceptions: - S.164; - S.165; - S.166; - S.170. 2) Scope - Jayarahman & Ors v PP: - S.164: not more than 3 offences of the same kind committed within 12 months. - S.165: one trial for all offences committed by the same person arising out of the same transaction. No limit to the number of charges. - S.166: Several offences are disclosed and it is doubtful which particular offence to charge; may be charge with all the offences or in the alternative of every such offence. - S.170: Several accused persons + same offences / offence of same kind / different offences in same transaction. No limit to the number of charges.

Answer 9

1) The law & scope 2) Meaning of same kind offences 3) Maximum 3 offence

Answer 10

1) The law: - S.164 2) Scope:

Answer 11

1) The law: - S.164(2) 2) Seng Sai Kee v PP: - S.164(2) explains what does it mean by same offence.

Answer 12

1) The law: - S.164(1) 2) Effect of non-compliance - Mohd Azahan Aminallah v PP: - The accused’s complaint that he had been charged and tried at one trial for four similar offences allegedly committed through a span of five years was justified & in breach of S.164(1). - It was not a mere irregularity but an incurable illegality.

Answer 13

1) The law & scope 2) Same transaction 3) Two or more separate definitions in law 4) Several acts constituting one offence

Answer 14

1) The law: - S.165 2) Scope: - One trial for all offences committed by same person arising out of the same transaction. - No limit as to number of charges which may be preferred.

Answer 15

1) The law: - S.165(1) 2) Meaning of same transaction - Amrita Lai Hazra v Emperor: - proximity of time, unity or proximity of place, continuity of action and community of purpose and design. 3) When the same transaction must be determined - PP v Ridzuan Kok bin Abdullah: - At the time the charge is framed & not at the end of the trial.

Answer 16

1) The law: - S.165(2) 2) Examples: - Illustrations (g) to (j) 3) Punishment - S.71(2) PC: - the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences. - i.e. punishment should be lower than the highest.

Answer 17

1) The law: - S.165(3) 2) Example: - Illustration (k) 3) Punishment - S.71(2) PC: - the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences. - i.e. punishment should be lower than the highest.

Answer 18

1) The law: - S.166 2) Scope: - Doubtful of which several offences which finally be proved; - The accused may be charged with all the offences disclosed or in the alternative for every such offence. - There is no limit as to number of charges. 3) Example: - Illustration (a) 4) Punishment - S.72 PC: - the offender shall be punished for the offence for which the lowest punishment; - i.e. punishment should be lower than the lowest.

Answer 19

1) The law & scope 2) Meaning of same transaction 3) Meaning of common intention 4) Whether common intention is the test

Answer 20

1) The law: - S.170: situations where persons may be charged jointly. 2) Scope: - Several person commits the same offence; or - Several person commits several offence of the same kind; or - Several person commits different offences in the same transaction; In such a situation, all the accused person can be charged with committing all the offences at the same trial.

Answer 21

Jayarahman & Ors v PP, ref. Amrita Lal Hazra v Emperor: - proximity of time. - unity of proximity of place. - continuity of an action; - community of purpose and design; i.e. common intention.

Answer 22

S.34 Penal Code: - When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.

Answer 23

PP v Muhammad Nasir bin Shaharuddin & Anor: - joint charge: prosecution must adduced sufficient evidence to establish the guilt of each of the accused as a separate exercise. - common intention: prosecution needs to establish that only one of the accused committed the act and the others participated in common intention. - when the accused persons are tried under S.170, the prosecution must prove the guilt of each and every accused separately; - it follows that each accused may be acquitted or convicted of independently committing the offence which is the subject matter of the joint charge.

Answer 24

1) On the trial - Subramania Iyer v King-Emperor: - joint trial for the appellant with 41 different charges and period of two years was plainly illegal and such disobedience to the express provision. 2) On the convictions - Chin Choy v PP: - the wrongful joinder of two offences consorting together with two other charges of unlawful possession of firearms that were committed within 7 years was an illegality and NOT curable under S.422. - convictions were quashed; a retrial being ordered. 3) Recent - Azahan Mohd Aminallah v PP: - The accused complained that he had been charged and tried at one trial for four similar offences allegedly committed through a span of five years. - CA referred to Subramania & Chin Choy and held that the trial of the appellant was a nullity and must be quashed as it offends the rules against misjoinder & offends the exception under S.164.

Answer 25

1) Principle - Lim Yean Long v PP (CA, 1940): - 1 CBT, S.408 + 2 falsification of documents, S.477A on three occasions + 1 forgery, S.465. - Held: exceptions mentioned in S.163 are cumulative and not mutually exclusive. - All the 10 charges can be jointly tried pursuant to the cumulative effect of S.164 & 165. 2) Application - Lim Tain Chye v PP: - 3 counts of CBT, S.408 + 3 counts of cheating, S.418 + 3 counts of fraudulently using as genuine forged documents, S.467 & 471. - Total of 9 charges can be lawfully tried together at one trial by virtue of cumulative effect of S.164 ('same kind') and S.165 ('same transaction'). 3) Recent - Norhazeni Ahmad v PP (HC, 2017): - persons may be charged and tried together if they are: * accused of the same offence *committed in the course of the same transaction; or *persons accused of different offences committed in the course of the same transaction.

Answer 26

1) The law & scope | 2) Whether it is mandatory to read & explain

Answer 27

1) S.158: - Court may alter / add charge any time before judgment is pronounced. 2) S.159: - call to plead & ask whether ready to be tried. 3) S.160: - court may direct adjournment or order new trial if proceeding immediately will prejudice the accused or the prosecution. 4) S.161: - court may adjourn if the new charge requires sanction; - unless the sanction has been obtained on the same facts. 5) S.162: - accused shall be allowed to recall, re-summon or examine; - accused shall be allowed to call any further evidence.

Answer 28

1) The law - S.158 - such alteration / addition shall be read & explained to the accused. 2) Scope - Chieng Chung Ting v PP (CA, 2015) - every such alteration or addition shall be read and explained to the accused. - It does not require that a plea be taken again (but, see S.159). - If, after the amendment, an accused does not inform the court that he is changing his plea, it means he is maintaining his plea of not guilty. - OTF the court had amended the charge P2 pursuant to s. 158(1) to reflect the proven facts ie, by deleting the word “storeroom” and substituting it with the words “unnumbered room” in such charge, which was explained to the appellant to which he understood and maintained his plea of not guilty. - there is no non-compliance with S.158.

Answer 29

1) General: - Whether the amendment is technical or substantial in nature; - Whether it had departed substantially; - Whether it has occasioned failure of justice. 2) Principle - Hee Nyuk Fook v PP: - the word "shall" although generally taken as mandatory, does not mean to be so in every case. - it depends on the facts and circumstances of a particular case, the purpose and object for which such provision is made, the intention of the legislature in making the provision and the serious inconvenience or injustice which may result in treating the provision one way of the other. Test: - look into the subject-matter of the case, consider the importance of the provision that has been disregarded, the relation of the provision to the object of the Code and decide in that order whether the matter is imperative or only directory. Held: - OTF, is not imperative but directory. - The provisions contained therein only lay down a rule of procedure and do not relate to the mode of trial.

Answer 30

Andy Majudil v PP: - since the amendment was not substantial & did not change the facts, it cannot be said that the accused was prejudiced. - the procedural non-compliance with S.158 for the amended charge to be read and explained had not occasioned a miscarriage of justice to the accused & can be cured under section 422 of the CPC.

Answer 31

Kamaruddin Mat Diri v PP (CA, 2005): - Although the charge was not read to the accused immediately upon its amendment, it was subsequently read to him when he appeared before another sessions judge after several adjournments. - Follows Hee Nyuk Fook.

Answer 32

Fam Meng Siong v PP - The discretionary power of the public prosecutor to prefer an alternative charge before the close of the prosecution case is not a transgression of the power of the court to alter or add a charge at any time before judgment under s. 158; - The notes of proceedings at the High Court showed that the alternative charge was read to all the accused, and that they claimed trial to the alternative charge. - The accused did not raise any objection to the alternative charge nor applied to recall any prosecution witnesses pursuant to the introduction of the alternative charge. - As long as the accused were not in any way prejudiced by the introduction of the alternative charge to which they claimed trial, there is no ground to conclude that there was a miscarriage of justice.

Answer 33

1) General rule 2) Exception 1 - S.167 3) Exception 2 - S.168 4) Exception 3 - S.169

Answer 34

1) The law - S.167: - Convicted with another offence which he could be charged for. 2) Test - Lew Cheok Hin v R: - Facts are available from the start. - Charge could have been framed and tried concurrently under S.166. - Evidence must have been presented in such a way that raise all the same issues of fact as would have been raised in the unframed charge been framed and tried. 3) Examples: * CBT & cheating - Penal Code - Sivalingam v PP: - The ingredients required to prove S.409 (CBT) and S.420 (cheating & dishonestly induce deliver of property) are not exactly the same. - Substitution of a conviction under S.409 could not be said to have been validly made with regard to this circumstances. cf. * Theft - Gurdit Singh v PP: - the main and necessary ingredient present in both S.380 and S.454; commission of theft. - requirements of S.167 are fulfilled. - the unframed charge was available & the evidence has raised the same issues of facts, i.e. theft, which is relevant to both S.454 & 380.

Answer 35

1) The law - S.168: - Convicted with attempt of the offence. 2) Application - robbery & attempted robbery - Quinn & Howland v R: - it was lawful for the jury to return a verdict of guilty on an unframed charge of attempted robbery when the trial was for the charge of robbery. 3) Punishment for attempt - S.511 Penal Code: - punishment for attempt of committing the offence punishable with imprisonment should be the same as committing the offence itself; - Provided that any term of imprisonment imposed shall not exceed one-half of the longest term provided for the offence.

Answer 36

1) The law - S.169 - Convicted for minor offence. 2) Meaning of minor offence - Lew Cheok Hin v R: - it is not identical with less serious. - it means produced by deletion without other alteration. - maximum sentence for the convicted offence may be lighter; but lighter sentence is not the test. 3) Application & example - causing death by negligence - Mohamed Yasin Bin Hussin v PP: - death is caused in a rash circumstance. - 'rash' came within the meaning of S.304A (causing death by negligence). conviction for murder is substituted. 4) Application & example - murder & culpable homicide - Tham Kai Yau & Ors v. PP, per Raja Azlan Shah: - 'It is culpable homicide if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the ordinary course of nature to cause death. - It is a question of degree of probability.’ - Ref. S.300 PC, Illustration (c) 5) Recent example - PP v Jarau Anak Kerukar: - S.302 was reduced to S.304(a). - At the end of defence, S.304(a) is substituted with conviction S.326. - This is allowed under S.169(2) as well as S.167.

Answer 37

1) Multiple charges | 2) Outstanding charges

Answer 38

1) the law: - S.171A 2) Accused must admit to having committed the offence - Hashim bin Pawanchee & Anor v PP: - In determining and in passing sentence on the accused who is found guilty if an offence, court may take into consideration any other outstanding offences; - The accused must admit to having committed them. 3) Record must indicate that other offence has been taken into account - Abang Zailan bin Abang Zainal v PP: - The record of the proceedings must indicate that other offences have been taken into account in sentencing.

Answer 39

1) Exercise of inherent powers | 2) Conflict with PP's power

Answer 40

Ahmad Zubair Hj Murshid v PP (2014): - must be exercised in exceptional circumstances to prevent undue oppression and abuse of the process of the court. - cannot exercise its inherent jurisdiction in respect of any matter covered by specific provisions of the law or if its exercise would infringe any specific provisions of the law. - in matters like criminal law of a purely domestic nature, the court will only exercise its inherent power when there is miscarriage of justice.

Answer 41

PP v Datuk Hj Wasli Md Said & Other Appeals (2014 - In exercising its inherent powers, it cannot be said that the court is fettering the powers of the public prosecutor. - Whether there is a merit to say that KL charges were preferred in bad faith, and accordingly, ought to be struck out by inherent power of the court: - -- Accordingly, there is no merit here to say that the KL charges against WMS were preferred in bad faith and for an improper purpose. - -- The explanation of the learned deputy public prosecutor that these KL charges were then in a period of gestation waiting to be born, was accepted. - --The delay was satisfactorily explained, although even if not clarified, this alone could not amount to a prima facie mala fide act, for into that phrase, "exercisable at his discretion" as found under art. 145(3) Federal Constitution, should read as the power to prefer whatever charges and at whatever time he chooses. - In this respect, the court's inherent power cannot be invoked to override that express provision of the law.

Answer 42

1) S.156: - No error or omission to state the offence shall be regarded as material unless the accused was misled by the error. 2) Scope of S.156 - Ravindran Ramasamy v PP: - The "error" in s. 156 is the error in stating the offence or the particulars required to be stated in the charge; - Not the error in stating the ingredient of an offence. - When there is error in stating the ingredient, S.156 will not apply. 2) S.422: - No finding, sentence or order passed shall be reversed by any error, omission or irregularity in the charge unless such error has occasioned failure of justice. 3) Scope of S.422 - Ravindran Ramasamy v PP (FC, 2015): - Under S.422, for an error or omission to be material, it is not enough that the accused had been misled; - there must also be a failure of justice. - when there is a failure of justice, S.422 will not apply to assist the prosecution. 4) Distinction & applicability of the provisions - Hamimah Idruss v PP: - S.422 covers a situation where there could be an omission in a charge as long as it does not occasion a failure of justice. - S.156 enacts that no error or omission in the charge is material unless the accused was misled in his defence.

Answer 43

1) General: - depends on the facts of the case - whether it has prejudiced the accused - whether it has occasioned failure of justice. 2) Kiew Foo Mui v PP: - Failure of justice does not connote that the Court should be of the opinion that an innocent person has been convicted or the case against the accused person is not made out beyond reasonable doubt; - The ‘failure of justice’ mentioned therein is that occasioned by the contravention of the provisions in CPC; - The expression ‘justice’ comprehends not merely a just decision but also a fair trial. - A denial of fair trial is denial of justice; - i.e. Therefore, when the error or omission in the charge has denied a fair trial for the accused, it will occasion a failure of justice & thus S.422 will not apply. 3) Pie Chin v PP: - prejudice is an essential ingredient to the failure of justice; - therefore, the test is whether the accused has been in any way prejudiced in his defence by this error. - if he is prejudiced, S.156 & 422 will not apply. 4) Ravindran Ramasamy v PP: - the test for "failure of justice" is whether the irregularity or error involves the breach of a principle of general importance to the administration of criminal justice. - if it does, S.422 & S.156 does not apply. 5) Can only be determined after all evidence has been adduced - Ahmad Zubair Hj Murshid v PP: - whether the accused was misled by any error or omission in the charges or whether such error or omission has occasioned a failure of justice can only be determined at the conclusion of the trial having regard to the entire evidence being placed before the trial judge.

Answer 44

Error to specify limb - Hamimah Idruss v PP - Even if there was a legal requirement to state the exact particulars or the specific limb of s. 107 in the abetment charge, s. 422 & 156 of the CPC should come to the aid of the prosecution as there was no failure of justice. - The accused took the witness stand to deny the allegations of SP47 and gave her own account of the events that led to the procurement of funds from SFA. - Therefore, the argument that the charges were fatally defective on account of lack of particulars was without merit as the accused was not prejudiced in her defence.

Answer 45

Error in stating ingredients of the offence - Ravindran Ramasamy v PP - S.156 & 422 of the CPC would not save a defective charge where the accused was misled and a failure of justice has occasioned. - Where it was an error or omission in stating the ingredients of an offence, it had been consistently held by the courts that the accused would have been misled and that there must have been a failure of justice. - On the facts, the appellant would have been misled and that a failure of justice would have been occasioned was most apparent. - The omission in not stating the presence of the appellant at the scene would have misled him to believe that the case to answer was not for an offence under s. 3A. - Rather, the omission, coupled with the error in stating that the appellant and Jayakumar discharged a firearm, could even have convinced the appellant that the case to answer was indeed for an offence under s. 3 FIPA. - The charge for an offence under s. 3 read with s. 34 and/or s. 3A read with s. 34 is unknown in law. - The conviction was thus a nullity and there was a total failure in the administration of justice.

Answer 46

1) Error as to date - Law Kiat Lang v PP: - the mistake in charge with regard to the date is not material as it was no essential to the offence. - this is so unless the date was an essential part of the alleged offence. - an error of date or place or minor inaccuracies are not sufficient to quash a conviction unless it has prejudiced the accused & caused a failure of justice. 2) Error as to the offence - Ahmad Zubair Hj. Murshid v PP: - The omission to state the mode in which the trust was to be discharged or of any legal contract made touching on the trust was not fatal at this stage of the proceedings. - During the course of the trial, the prosecution can amend and lead evidence to identify the breach. - With the leave of the court, the prosecution is entitled to amend the charges at any stage of the trial.

Chapter 9 - Charges Flashcards

(71 cards)