THE charge is the first step in the criminal prosecution process. It is a definite allegation.

When a person is said to be charged with an offence, he is in fact called to appear before a court and be informed of the charge or complaint against him.

It is one of the elementary principles of criminal law that an accused person must know with certainty what the accusations against him are, which he is called upon to answer for. In other words, an accused person is entitled to be informed with sufficient clarity and certainty what offence has been alleged against him so that he may be prepared to answer the charge as he best can.

Otherwise, the accused person may be severely prejudiced in his defence.

Which is why the prosecution is reminded to “exercise a lot more care and vigilance in framing a charge against an accused. The object of a charge is to give notice to the accused of the essential facts constituting the offence, which he is alleged to have committed and the law he has violated. The charge should be capable of being substantiated with as much evidence as is available to the prosecution. It is not enough merely to say that some offence has been committed by the accused. He is required to answer a specific charge and meet the specific allegations in the charge and pointedly plead thereto alone (Sharma J in Public Prosecutor v Anthony [1972] 1 MLJ 229, 330).”

In exercising care and vigilance in framing a charge, the prosecution is often further reminded of the advice of Thomson J (who later became the country’s first lord president) given way back in 1955 that in framing a charge, the prosecution should adhere as closely as possible to the wording of the statute constituting the offence and that the court should be at pains to see that this is done. If it is done, the prosecution knows what has to be proved and the accused person knows what is charged against him. If it is not done, then there is the danger of a muddle in the case (Public Prosecutor v Syed Bakri [1955] MLJ xvii).

It follows that the courts, too, have a duty to ensure at the commencement of any criminal case that the charge has been properly drafted. Should it come to the notice of the presiding judge that the charge is defective, he should promptly bring it to the attention of the prosecution and, thereafter, take the necessary measures to rectify the defect.

Which is why the court is empowered to “alter or add to any charge at any time before judgment is pronounced”. This power to amend charges is found in Section 158 of the Criminal Procedure Code (CPC).

Clearly, an amendment may be made at any stage before judgment is pronounced. It is, therefore, permissible under that section to alter the charge even after the defence has been called but it is a course that should be adopted only with great caution.

In general, the earlier the amendment to the charge, the better. But, it is at the close of the evidence for the prosecution that the court is in the best position to decide exactly what is the case that the accused is required to meet. This is said to be the “safer and better” course to follow – that the court should make any alteration or amendment to the charge only at the close of the case for the prosecution.

In a recent case of Mohd Taufik Peter Abdullah v Pendakwa Raya [2019] 4 MLJ 542, the Court of Appeal said that the best time to amend or add a charge was when the prosecution’s case was in progress or at the conclusion of the prosecution’s case, unless the rights of the accused person will be affected by such action.

Having said this, it does not exclude either earlier or later amendment for particular reasons. Section 158 confers wide powers on a trial court at any level to amend the charge.

However, the court’s authority to amend a charge or add an entirely new charge is employed on the facts of every case and the facts must justify the amendment. What is important, as the Court of Appeal in Taufik’s case said, is that the amendment should not cause any prejudice to the accused or result in an injustice to him.

It is then for the court to decide in each case whether the accused has been prejudiced. The Indian Commentaries on The Code of Criminal Procedure (1973) states as follows:

“The question of prejudice to the accused is ultimately one of inference from all the facts and circumstances of the case. The court will be slow to entertain the question of prejudice when the details are not furnished.”

That the accused should not be prejudiced in his defence is another elementary principle of criminal law. The burden is on the accused to establish that he was prejudiced.  

In any case, if there are defects in the charge, they ought to have been rectified by the trial court (Lew Cheok Hin v R [1956] MLJ 131). – June 17, 2020.

* Hafiz Hassan reads The Malaysian Insight. 

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.