DECEMBER 21 — A charge may be defined as a precise formulation of the specific accusation made against a person, who is entitled to know its nature at the very earliest stage.

A charge acts as a notice to the accused of the matter in respect of which he is accused. Accordingly, a charge must convey to the accused with sufficient clearness and certainty what the prosecution intends to prove against him.

It is an elementary principle of criminal law that an accused person must know exactly what is the charge which he is called upon to answer; and still more so, that he should know what offence he has been convicted of. (See Jagar Singh v PP [1936] MLJ 92 at 94)

The charge is also an information to the court, which is to try the accused, of the matters to which evidence is to be directed.

When framing a charge, Thomson J in PP v Leong Yoon Meow [1953] had this advice: if what an accused person is alleged to have done cannot be described in the language of any statutory provision creating an offence, or where it seems necessary to depart from the language of the section in framing a charge, the probability is that no offence has been committed.

The same judge in a later case of PP v Syed Bakri [1955] had a further advice: in framing charges, prosecution officers should adhere as closely as possible to the wording of the statute constituting the offence with which the accused is charged, and that the courts should be at pains to see that this is done.

Judges are under a duty to examine all charges critically before calling on the accused to plead and to rectify errors at the earliest opportunity.

If the charge is defective or badly framed, the judge should point out the defects and request the prosecuting officer to amend the charge as the accused should truly understand the nature of the charge he is asked to plead to.

If a charge is so badly framed that the accused is misled, an appellate court will have no hesitation in quashing a conviction, as decided in the case of PP v Lee Pak [1937].

There is clearly a specific duty imposed on the prosecution to particularise the charge sufficiently so as to give adequate notice to the accused.

It was decided as long ago as 1842 in the case of Lim Beh v Opium Farmer that "If there be any one principle of criminal law and justice clearer and more obvious than all others, it is that the offence imputed must be positively and precisely stated, so that the accused may certainly know with what he is charged and may be prepared to answer the charge in the best way”.

In the United States, it was similarly decided that that an indictment – which is called a charge in Malaysia – must: (1) contain the elements of the offence intended to be charged; (2) provide sufficient additional particulars to apprise the accused of the allegations he must be prepared to meet; and (3) reveal enough about the alleged crime to enable him to plead ‘double jeopardy’ in case any other proceedings are taken against him for the same offence. (See Hamling v US)

In short, a charge must contain or disclose an offence.

That was one of the reasons why High Court judge K. Muniandy ruled that the charges against Rosmah Mansor were illegal and flawed as the charges did not disclose any offence.

A charge without an offence is like a heart without a beat. What’s a heart without a beat?

And when a charge is without an offence, what’s that got to do with the prime minister?

* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.