A charge is simply an allegation that a person has committed a specific crime. When a person who is alleged to have committed a crime is brought before the court, a charge has to be read to him and he shall be asked to plead to the charge [Section 173(a) of Criminal Procedure Code]. This person also known as an accused in this circumstance will either plead guilty or plead not guilty to the charge [Section 173 (b) of Criminal Procedure Code].

The charge read to the accused is framed by the prosecution before it is read to the accused. In drafting the charge, the prosecution is aided and guided by the form and rules of drafting a charge under Chapter XVIII of Criminal Procedure Code. This chapter of Criminal Procedure Code governs the form and particulars that shall be included in a charge against the accused. Among other things that are essential in a charge is the offence and section of law with which the accused is charged, the particulars such as time and place the offence is alleged to be committed, and the manner of the offence is alleged to have committed (Section 152 – 154 of Criminal Procedure Code).

The rules for drafting a charge exist to recognize the rule of natural justice and fair trial as can be seen in the case of Ridge v Baldwin [1964] AC 40 where Lord Morris said

“it is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet.”

A charge can look really simple as it is just a paragraph that states the offence the accused is alleged to have committed. For example, a charge for an offence under Section 326 of Penal Code (Voluntarily causing grievous hurt by dangerous weapons or means):-

“That you, on or about 0900hrs the 12th day of May, 2012, at the car park of Spring Mall, Kuching in the State of Sarawak, voluntarily caused grievous hurt to John, and thereby committed an offence punishable under Section 326 of the Penal Code.”

However, such a paragraph may be simple and without error for layman, but it could be defective in the eyes of criminal lawyers. One of the flaws that an experienced criminal lawyer will ask about the charge is – Where is the exact location of car park of Spring Mall? Premier Parking? Basement parking? Or simply parking area outside Spring Mall? A different identification of location may mean a different offense committed by some other person at or about the same time and same location albeit different part of the location. This can also go to the issue of identification of the assailant of the offence against the victim. To a criminal lawyer, his client may not be the person who assaulted John, but, someone else.

Which John the charge referred to? John Wong? John Lau? Or maybe John Ak William? The accused is charged for causing grievous hurt. Where is the dangerous weapon? What type of dangerous weapon used by the accused? Nothing is mentioned in the charge to refer to the dangerous weapon or the type of dangerous weapon used because an offence under section 326 of the Penal Code requires the mentioning of particulars of dangerous weapons used. And this can be fatal to the case as the more proper offence should be Section 325 of Penal Code. What kinds of hurt constitute as “grievous” are as mentioned in section 320 of the Penal Code.

All these can make a lot of difference. The accused simply could not answer to a charge or prepare his defence if he is not given sufficient particulars as to the offence he is charged. This was the view taken in the case of Yoh Meng Heng v PP by Ong Hock Sim J, stated as follows:

“It is essential that a person accused of a charge should be given sufficient particulars to know just what the charge against him is, so that he may rebut it. It is embarrassing to the defence not to know just what he is alleged to have contravened.”

It is of no wonder that during the early years when we as aspiring lawyers were studying for our Certificate of Legal Practice, our lecturers emphasized the importance of drafting a charge correctly. Lecturers advised us if we are not familiar in drafting a proper and correct charge, we were advised not to attempt the question on charge because a single mistake in the charge drafted by us during the CLP examination could be fatal to our Criminal Procedure paper.

An appellate court is often ready to quash a conviction based on a badly framed charge if the accused has been misled by such a defective charge. This was the view taken by PP v Lee Pak [1937] MLJ 256:

“A charge should be so drawn that the accused should know exactly the case which he has to meet and that he should not be left guessing as to which of a number of alternatives he is alleged to have offended against. If a charge is so badly framed that the accused is misled thereby, an appellate court will have no hesitation in quashing a conviction based on such a charge.”

Although there are provisions under Section 156 and Section 422 of Criminal Procedure Code to cure the irregularity of a charge, the court may not invoke these provisions to cure the irregular charge or badly framed charge unless it has caused injustice to the accused or the charge framed had greatly impede justice and caused prejudice to the accused in preparing his defence or that the charge had disclosed no offence at all against the accused.

This view was enunciated in the case of Hazraf Ali bin Hassan v Pendakwaraya [2011] 6 AMR 233 where the learned judge expressed as follows:

“I am aware of section 156 of the CPC which provides as follows: “No error in stating either the offence or the particulars required to be stated in the charge, an no omission to state the offence or those particular shall be regards, at any stage of the case, as material unless the accused was in fact misled by that error or omission.” I am not convinced that this section applies here as the defect in the charge in this case does not only amount to an error but beyond that, it does not disclose any known offence.”

As stated by Syed Agil Barakbah J in the case of C. Mohammad v. PP [1974]1 MLJ 25 at p 26:

“Since the charge does not disclose any offence known to law, it is not necessary nor desirable for me to consider the provisions of the Criminal Procedure Code as urged by the learned deputy public prosecutor because there is an apparent miscarriage of justice.”

Quite some time ago, our counsel defended a client who was charged for an offense under Section 41(1) of Road Traffic Act 1987 – causing death by dangerous driving. As the charge did not mention the particulars in sufficient details as it did not elaborate on the manners how our client drove his car dangerously and thus causing death, our client was discharged based on defective charge. The appeal to the Court of Appeal against our client’s discharge of the charge by the prosecution also failed.

Thus, a simple charge although it contains only a paragraph or two that expressed the offence committed by the accused could mean a lot of difference in the eyes of law practitioners and many at times free a convicted person. And it is the duty and role of a good defence lawyer to identify the flaws in a charge to secure acquittal of the clients who hired him.


This article is contributed by Kenny Voon, a chambering student at Voon & Co.