DECEMBER 23 — The grounds of judgment of the learned High Court judge K. Muniandy who acquitted Datin Seri Rosmah Mansor are not yet publicly available.

But from media reports, the decision is reminiscent of the judgment of Judicial Commissioner Azahar Mohamed (as he then was) almost 20 years ago in the case of Shawal bin Hj Mohd Yassin v Public Prosecutor [2006].

In that case, the learned magistrate found the appellant guilty as charged. He was convicted and sentenced to two years imprisonment.

He appealed against conviction and sentence. The primary issue on appeal was whether the charge framed against the accused was defective.

The learned Deputy Public Prosecutor (DPP) fairly and frankly admitted that the charge against the accused was defective, but invited the court to uphold the conviction notwithstanding the defect in the charge.

The learned DPP argued that the defect was not fatal and did not amount to a failure of justice, referring to Sections 156 and 422 of the Criminal Procedure Code (CPC).

Section 156 reads as follows:

No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state of offence or those particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by such error or omission

Section 422 states as follows:

Subject to the provisions contained in this chapter no finding, sentence or order passed or made by a court of competent jurisdiction shall be reversed or altered on account of:

(a) of any error, omission or irregularity in the complaint, sanction, consent, summons, warrant, charge, judgment or other proceedings before or during trial, or in any inquiry or other proceedings under this code; or

(b) the want of any sanction; or

(c) the improper admission or rejection of any evidence, or unless such error, omission, irregularity, want, or improper admission or rejection of evidence has occasioned a failure of justice.

In response to the argument, the learned Judicial Commissioner had the following to say:

"With respect, I am unable to accede to the argument of the learned deputy. In my view Section 156 has application only in a situation where there is an error either in stating the offence or the particulars required to be stated in the charge or there is an omission to state the offence or those particulars. In other words that section provides for a cure should there be any non-compliance with the technical provisions of the law.

"I do not think that provision can be invoked in the case at hand in a situation where the charge was defective as disclosing no offence under the section of the Act. I do not consider that this is an irregularity curable under Section 156.

"In the same way, the application of Section 422 is constrained to remedy no more than technical defects in the charge. To me where a trial in the court below is conducted on the basis of a charge which is defective as not disclosing an offence under the relevant section, it is an illegality which cannot be cured by Section 422.”

After referring to the decision of the Court of Appeal in the case of Msimanga Lesaly v PP [2005] the learned Judicial Commissioner continued:

"The defect in the charge was a matter of substance and not merely of form. This was not a mere technical non-compliance of any provision of the law which can be condoned as an irregularity.

"I do not think it can be cured without causing injustice to the appellant. In my view, this was not a defect, disregarding it would not occasion a miscarriage of justice. To me the charge as framed did not disclose any offence and therefore I have no doubt that the defect of this kind was an illegality.

"I think the [accused] was left in doubt as to the offence of which he had been convicted and sentenced. It is a fundamental principle of criminal law in our country that an accused person should know accurately what offence he has been convicted and sentenced.

"In my judgment the error in the charge did cause prejudice and injustice to the [accused]. In the end, I have no hesitation in saying that the charge framed against the [accused] was bad in law. When looked in this way, one can see that there has been a substantial miscarriage of justice.”

The learned Judicial Commissioner then concluded:

"The conviction was wrong in law and illegal since the charge was bad in law, as it disclosed no offence.”

Before being appointed to the bench, the learned Judicial Commissioner was once a senior DPP, even heading the Prosecution Division of the Attorney General’s Chambers (AGC).

He went on to serve as the 12th Chief Judge of the High Court of Malaya from August 2019 to his retirement in October 2022. Justice K. Muniandy was also once a senior DPP.

Their decisions are telling reminders to DPPs of the imperative to comply with the requirements of the law.

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