Charge under the Criminal Procedure Code (CPC)

Definition: Charge is not defined in the CPC

Basically, it is a specific accusation made against a person of an offence alleged to have been committed by him.

General principles of charges:

1. Jagar Singh v PP [ACRJ Perak]

The appellant was convicted on a charge which stated that he drove his car carelessly without reasonable regard to the safety, comfort or convenience of other road users. There were two offences in 1 charge and the conviction was bad for duplicity.

Principle: an accused person must know exactly what is the charge he is called upon to answer and he should know of what offence he has been convicted.

2. PP v Leong Yoon Meow [High Court]

Principle: In drafting a charge, if what an accused person is alleged to have done cannot be described in the language of any statutory provision creating an offence, then the probability is that no offence has been committed.

3. Datuk Haji Wasli bin Mohd Said v PP [High Court]

Principle: Art. 145(3) of the FC allows the PP to prefer whatever charges and at whatever time he chooses. The Court has no inherent power to override that provision.

Form of Charges

SS. 152 – 154

1. PP v Chung Tshun Tin [High Court]

The accused should be informed with certainty and accuracy, the exact nature of the charge brought against him, otherwise he may be prejudiced in his defence.

2. PP v Dato’ Seri Anwar bin Ibrahim [Federal Court]

- It is mandatory to follow s. 153 of the CPC where the time stated in the charge must be particular as it is a ‘material matter’.

3. Law Kiat Lang v PP [Federal Court] - the date in the charge has never been material – the Court didn’t refer to s.153(1)

4. Pang Neng Tiong v PP [High Court]

In this case, the charge was for attempted robbery under s.397 of the PC read with s. 511. However, s. 511 doesn’t provide for the relevant punishment. Court held that s. 393 of the PC which provides for the offence under s.397 should be stated in the charge instead of s. 511. The Court allowed the charge to be amended.

S. 421 – omission to frame charge doesn’t nullify a conviction or sentence unless a failure of justice was caused.

Errors on Charges

S. 156 – no error in stating or omitting to the state the offence or the particulars therein shall be regarded as material unless the accused was misled by the error or omission.

S. 422 – general provision to cure any error, omission or irregularity unless it occasions a failure of justice.

Low Seng Wah v PP [High Court] – burden is on the accused to establish that he was misled by the error or omission

Gunalan a/l Visuanathan v PP [High Court]

The appellant was charged under s.392/397 of the PC for robbery. However, on the facts the appellant did not use any weapon and therefore the charge should be under s.329 of the PC. However, the defective charge did not cause a failure of justice as he knew what type of offence he was charged with. It was curable under s. 422.

Periasamy & Anor v PP [High Court]

The accused was charged under s. 148 of the PC with the offence of rioting and being in possession of weapons. However, the charge stated that the accused had rioted using deadly weapons which might cause death. Held: charge was defective as it was inconsistent with s. 148. The error was material and not curable under s. 422 as it would prejudice the accused.

Amendment of Charges

SS. 158 -162

1. PP v Salamah bte Abdullah

The appropriate time to amend the charge is at the end of the prosecution’s case even though s. 158 provides that amendment may be made before judgment.

2. PP v James Tan [High Court]

Where the facts disclose another offence for which the accused is not charged, the court ought to amend the charge unless there are reasons for not doing so.

3. Hee Nyuk Fook v PP [Supreme Court]

Where in the course of trial a charge is amended, it is mandatory to read and explain the amended charge to an accused person pursuant to s. 158(ii) of the PC. Whether s. 158 is mandatory depends on the facts and circumstances of each case.