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Written by Amanda Teh
The meaning of the word ‘charge’, as given in Wharton’s law Lexicon, is ‘to prefer an accusation against one.’ To, ‘charge’ a person thus means to ‘accuse’ him; the person charged is known as the ‘accused person’ or simply as the ‘accused’. 1
For the original charge, the court is required to have it explained to the accused and to make sure that the accused understands it the way it should be understood by virtue of s.173(a) Criminal Procedure Code (CPC).
The rationale behind this is that one of the significant purposes of the charge in criminal proceedings is to inform the accused of the offence alleged against him and for him to prepare his defence 2. If an accused is not able to understand the offence charged against him the way it should be legally understood, then this may deprive the accused of his/her constitutional right of having a fair trial.
So how about an amended charge? Does the amended charge have the same nature as the original charge? Is it mandatory for it to be read and explained to the accused?
Statutory Provisions
First and foremost, the court may, under certain circumstances, amend the original charge against an accused under s.158(2) CPC and s.173(i) CPC.
s.158(2) of the CPC provides that every such alteration or addition shall be read and explained to the accused. Also, for the subordinate courts, under 173(i) of the CPC, it is stated that the charge, if amended, shall be read to the accused as amended and he shall be asked again, whether he is guilty of the offence mentioned in the charge, as amended.
Cases That are in Support
Some of the cases that support the view, that it is mandatory for the amended charge to be read and explained to the accused, are provided in the book of “Criminal Litigation Process, 3rd Edition” by the author Baljit Singh:
1.Lim Thuan Hong v Jebson [1885] 4 Ky 79
It was held that the amended charge must be read and explained to the accused as required under s.158(2). 3
2.Singah Mohd Hussain v PP [1973] 2 MLJ 109
It was stated that the omission by the learned magistrate to read and explain the amended charges to the appellant, was an irregularity which was not curable by s.422 as it was contrary to a statutory requirement. 4
3.Quek Ching Kim v R [1956] MLJ 54
It was held that the charges cannot be amended during the appeal as the accused may not be present and the amended charge cannot be read and explained to the accused. This decision means that reading and explaining the amended charge to the accused is mandatory. 5
Cases That are Against
However, a very insightful extract from the judgment of a Supreme Court case, Hee Nyuk Fook v PP [1988] 2 MLJ 360 6 was provided in the textbook, ‘Janab’s key to criminal procedure, 4th edition’ :
“The question of whether s.158(2) is mandatory or directory depends on 4 factors which including facts and circumstances of a particular case; the purpose and object of which s.158(2) is made; the intention of legislature in making the provision; serious inconvenience or injustice which may result in treating s.158(2) one way or another”
“no hard and fast rule can be laid down merely from the use of the word “shall” in s.158(2) and this section only lay down a rule of procedure and do not relate to the mode of trial.”
“the nature of the amendment being purely technical and in no way substantial has not rendered the omission to read over and explain the amended charge at the close of the defence a serious irregularity as to vitiate the proceeding or occasion a failure of justice.”
~~ Depends on the facts and circumstances
Conclusion
In simple words, when deciding whether it is mandatory to read and explain the amended charge to the accused, the facts and circumstances of the case must be considered.
To be more specific, if the facts and circumstances of the case are as such that, without reading and explain the amended charge to the accused, the accused may have a chance of not understanding the nature of the charge, disabling him from preparing his defence, then s.158(2) and s.173(i) need to be interpreted as “imperative” and is a serious irregularity.
As in the case of Singah Mohd Hussain (distinguished from the case of Hee Nyuk Fook), the original charge did not disclose the actual offence until it was amended at the close of the defence’s case. If the Magistrate had not read and explained the amended charge, the trial would have been a nullity.7
As in the case of Kamaruddin Mat Diri v PP [2005] 3 CLJ 180, one of the grounds of the accused’s appeal is that the charge was not read to him after it was amended at the close of the prosecution’s case. The Court of Appeal dismissing the appeal held, inter alia, that (per Abdul Malek Ahmand PCA) although the charge was not read immediately upon its amendment, it was subsequently read to him before another Sessions Court judge after several postponements. Hence, there was no merit in this ground of appeal. 8
To answer the question whether it would be mandatory for the amended charge to be read and explained to the accused, I would say that it should not be. This is because the nature of the original and the amended charge are different. As for the original charge, there is no dispute as to whether it is mandatory for the judge to explain and read the charge to the accused, as it is for sure that the accused needs to fully understand the nature of the charge at the very start of the indictment against him. However, the nature of an amended charge may vary in each case, ie: the amendment may only affect a small part of the charge so the accused may still be able to understand the nature of the whole charge which has already been explained to him in the beginning.
Bibliography
1. Janab’s Key to Criminal Procedure, 4th Edition, Janab (M) Sdn Bhd, 2018, pg 45.
2. Criminal Litigation Process, 3rd Edition, Sweet & Maxwell, 2015, [7.004].
3. Criminal Litigation Process, 3rd Edition, Sweet & Maxwell, 2015, [7.090].
4. Janab’s Key to Criminal Procedure, 4th Edition, Janab (M) Sdn Bhd, 2018, pg 358.
5. Criminal Litigation Process, 3rd Edition, Sweet & Maxwell, 2015, [7.091].
6. Janab’s Key to Criminal Procedure, 4th Edition, Janab (M) Sdn Bhd, 2018, pg 358.
7. Criminal Litigation Process, 3rd Edition, Sweet & Maxwell, 2015, [7.092].
8. Criminal Litigation Process, 3rd Edition, Sweet & Maxwell, 2015, Chapter 7, [7.094].