APRIL 14 — The law and procedure on charges are set out in Chapter XVIII of the Criminal Procedure Code (CPC). Section 163 provides, in the first limb, that for every distinct offence there shall be a separate charge.
This means that for one distinct offence there must be one charge and for two distinct offences, there must be two charges.
When two offences are committed and they have no connection with one another, they are distinct offences. The example is given in the illustration to the section:
“A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt.”
The offences of causing grievous hurt and theft are therefore distinct offences.
There are numerous categories of distinct offences, but three obvious categories are —
• offences provided under different sections of the Penal Code or any other penal statute;
• offences provided under the same section of the law but committed at different times or on different occasions;
• offences committed against different persons or victims.
When two or more offences are mentioned in a charge, the charge is said to be duplicated, or as is often said by lawyers, bad for duplicity.
Hence, the rule is often termed as the rule against duplicity, which is a prohibition against introducing more than one offence in a single charge.
The reasons for the rule are —
• that the accused will not be bewildered in his defence by having to meet charges which have no connection with one another;
• that the accused will not be accused of several charges at one time; and
• that the court will not be prejudiced against the accused by making it possible for the prosecution to adduce a mass of evidence at the trial relating to various extraneous matters.
It is the duty of the court to satisfy itself that the charge is on the face of it properly framed before an accused person is called upon to plead to it.
In the case of Jagar Singh v Public Prosecutor, decided more than 80 years ago in 1936, the accused was charged for driving “carelessly without reasonable regard” to the safety comfort or convenience of other persons using the road contrary to Section 46(i) of the Motor Vehicles Enactment (Cap 168). The section provided for two distinct offences: (1) driving carelessly; (2) driving without reasonable regard.
The accused was convicted on the charge. On appeal, the judge ruled that the single charge against the accused contained two distinct and separate offences under the section — that is, the accused drove “carelessly” and “without reasonable regard”.
Justice Howes said:
“It seems to me 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 of what offence he has been convicted. This is the English law, and I can find nothing in the Criminal Procedure Code to justify my finding that the same principles do not apply in the Federated Malay States.
“The only difference is that here the Public Prosecutor has the advantage of being able to frame an alternative, but separate, charge.
“In view of the express provisions of the Criminal Procedure Code section 163, that for every distinct offence there shall be a separate charge, I hold that the trial of the accused for the two distinct offences contemplated in section 46(i) of the Motor Vehicles Enactment (Cap. 168) in one charge was not a mere irregularity, but was an illegality, and for this reason the conviction must be quashed, and the fine repaid to the [accused].”
A year later, in the case of Yap Liow Swee v Public Prosecutor, the accused was convicted on a charge setting forth that he drove a motor bus “recklessly or negligently in a manner which was dangerous to the public”, in contravention of Section 45(i) of the same Enactment. (Emphasis added)
There were four distinct offences under the section: (1) driving recklessly; (2) driving negligently; (3) driving at a speed which is dangerous to the public; and (4) driving in a manner which is dangerous to the public.
On appeal, the appellate court of three judges ruled that the charge that read “That you did drive motor bus H.N.S. 3091 recklessly or negligently in a manner which was dangerous to the public” was bad for duplicity.
Acting Chief Justice Terrel said:
“In a case like the present the prosecution does not set out to prove both recklessness and negligence, but merely one or the other. Accordingly, the accused is embarrassed in his plea and if he is convicted, he is left in doubt as to the offence of which he has been convicted.
“I have no doubt therefore that duplicity of this kind is an illegality, and that the appeal should be allowed and the conviction set aside.”
Under current legislation, two distinct offences can also be found in Section 41(1) of the Road Transport Act 1987 (RTA), among others.
In a charge under the section, the accused in the case of Poleon ak Ajan v Public Prosecutor [2010] was charged with the offence of “reckless and dangerous driving” which had caused the death of the victim.
Judicial Commissioner Rhodzariah Bujang (as she then was) ruled that Section 41(1) RTA provides for two separate offences — that is, dangerous driving and reckless driving, which attract the same punishment.
The prosecution ought to be alive to this fact, and had committed a fatal error in lumping the two offences together. Due to the error the accused was prejudiced, in that, he had been unfairly burdened with disproving two separate ingredients of the offence.
Since the charge was bad for duplicity, the conviction was set aside.
The prosecution in the “basikal lajak” case too should be alive to the fact that Section 41(1) RTA provides for two separate offences: (1) dangerous driving; and (2) reckless driving. The charge against the accused cannot be for “reckless and dangerous driving” or “reckless or dangerous driving”. https://www.malaymail.com/news/malaysia/2023/04/11/sam-ke-ting-walks-free-of-reckless-driving-charge-in-fatal-2017-basikal-lajak-case-after-court-of-appeal-overturns-conviction-video/64225
Such a charge will have contained two separate offences and therefore bad duplicity.
The general rule is: one charge, one offence like in one heart, one love.
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
