JOINDER OF OFFENCES AND CHARGES

 Section 163 provides two general rules which are the rule against duplicity and
the rule against joinder of charges/rule against joinder of accused person.

RULE AGAINST DUPLICITY

 The first limb of Section 163 of CPC provides that for every distinct offence of
which any person is accused, there shall be a separate charge.
 However, there are exceptions to the rule against duplicity as provided in section
153(2) of CPC for two categories of offences under section 406 to section 409
Penal Code for criminal breach of trust and section 403 and 404 of Penal Code
for dishonest misappropriation of money.
 It is sufficient for the prosecution to specify the gross sum and the first and last
dates of the offence and the period must be within 1 year.
 In Sheik Hassan v PP states that the accused was alleged to have commit 23
offences of CBT where each of offence involve a sum of RM1M. It was held that
the offences can be joined in one charge which states the gross sum of RM23
and the first and last date of the offences, and the period is not more than one
year.
 If there is duplicity, it is still curable but must not leads to failure of justice.
 In Lee Chin Kee v PP (1935), two offences have been included in the same
charge and that charge will be bad for duplicity. However, duplicity is an
irregularity and not illegality, so it can be cured if it has no failure of justice.
 However, in Jagar Singh v PP (1936), the court did not apply his decision as in
Lee Chin Kee v PP. In this case, the Magistrate combined two offences in the
one charge. The appeal court states that the general principle in English law is
that the accused person must know exactly the charge which he is called upon to
answer and not of what offence he has been convicted. Such principle is applied
in Malaysia and but the only difference the PP can frame an alternative separate
charge. Thus, in this case, the court held that the trial of the accused for two
distinct offence was not a mere irregularity but was an illegality as it is the
requirement under 163 CPC.
 In See Yew Poo v PP (1949) the accused was alleged to have committed two
armed robberies on two persons at different time. The issue arose whether the
duplicity was illegality or irregularity which could be cured under s 422 of CPC.
Russell J held that the charged had cause confusion in the mind of trial judge
and thus the duplicity was illegal and cannot be cured under s 422 CPC.
Conviction was quashed and retrial was ordered. The court stated that if the
charge has two separate offence which could have proceeded on two separate
charge at one trial, the duplicity is a mere irregularity which can be cured under
 s422 if it does not occasion to failure of justice, but if the charge cannot
proceeded on two separate charge in one trial, then the duplicity is an illegality
and cannot be cured by s422.

RULE AGAINST JOINDER OF CHARGES AND ACCUSED PERSONS (TRIAL)

 Section 163 of the CPC states that every charge shall be tried separately.
 This means that every charge of one offence should be tried separately or every
accused persons should be tried separately.
 However, there are four exceptions in the cases mentioned in Section 164, 165,
166 and 170.
Section 164
 Section 164(1) provides that three offence of the same kind within twelve
months may be charged and tried together at one trial.
 Section 164(2) states that an offence of the same kind are those punishable with
the same amount of punishment under the same section of Penal Code or any
other law for the time being in force. Offences deemed to be offences of the
same kind are under s 379, s 380, 382, 392 to 397.
 Thus, to fulfill section 164, there must be only one accused, more than one
offence and the offence are the same kind, offences committed within 12 months,
and the number of charge joined must not exceed three charges.
 In Sheikh Hassan v PP it was held that one charge containing 23 offences of
CBT may be taken to be a charge of one offence of CBT. This single charge may
be joined with other charges of attempting to commit CBT provided that all three
charges are committed within 1 year.

Section 165
 Next, in section 165 provides that three situations where charges may be tried in
one trial.
 Section 165(1) states that if the series of acts are so connected to form the
same transaction and more than one offence is committed by the accused, he
may be charged with and tried at one trial for every such offence.
 In PP v Dato’ Seri Anwar Ibrahim if in one series of acts so connected together
as to form part of the same transaction more offences by the same person, he
may be charged with and tried in one trial of every such offence.
 The test in determining whether two or more acts constitute the same transaction
was laid down in the Indian case of Amrita Lal Hazra v PP (1915), which are
proximity of time, unity or proximity of place, continuity of action and community
 of purpose. This test has been approved by Malaysian case, such as Jaafar bin
Hussain v PP and Chin Choy v PP (1955).
 On the other hand, s 165(2) provides that if the accused’s acts constitute an
offence within two or more separate provisions in law, then he may be tried at
one trial for each of such offences.
 Furthermore, s 165(3) provides that if the accused commit several acts which by
themselves are individual offences but if combined constitute another separate
offence, then all such offences can be tried in one trial.
 Nothing in this section should affect section 71 of Penal Code.
 Section 71 of Penal Code provides that the limit of punishment of offence which
is made up of several offences, the offender shall not be punished by punishment
of more than one of his offences unless it is expressly provided.
Section 166
 Section 166 states that if a single act or series of acts is such a nature is
doubtful which one of the several offences can be proved in the facts, the
accused may be charged with having committed all or any of them, and any
number of the charges may be tried at once or he may be charged in the
alternative with having committed some one of the said offences.
 For an example, illustration A says that A is accused of an act which may amount
to theft or receiving stolen property, or CBT or cheating. He may be charged with
all of the offences, and all of the offences can be tried in one trial.
 In the case of Gurdit Singh v PP (1983) the appellant was convicted for an
offence under section 454 of Penal Code. He appealed against the sentence.
During appeal, the prosecution argued that the appellant should have been
convicted for section 380 Penal Code and not under section 454 of PC. The
Prosecution then requested to court to exercise its power to substitute the
conviction for a charge under s 380. The court held that, to satisfy the
requirement of section 166, the facts must be such that the unframed charge was
available from the start, and secondly, the evidence has raised the same issues
of fact in the unframed charged and the defense also should have been the
same.
 In the case of Fam Meng Siong & Anor v PP (2012) the appellants were
originally charged and tried for an offence of murder under s 302 of PC reads
with s 34 the same. During trial, the DPP tendered an alternative charge under s
149 of PC and punishable under s 302 the same against the appellant. The court
found that the appellant guilty of the alternative charge and sentenced them to
death. The appellant appealed and argued that the tendering of alternative
charge in the midst of trial is a disadvantage to them to call the witnesses.
Besides, there was no written consent form DPP on the alternative charge and
thus such charge is null. Meanwhile, the prosecution states that the alternative
charge was made under s 166 of CPC so he had power to do so without making
an application under s158. The court held that the alternative charge was not a
 nullity although there was an absence of written consent from Public Prosecutor
as the prosecution was conducted by the DPP himself. The court also stated that
it is a discretionary power of the public prosecutor to prefer alternative charge but
it’s not refrain the power of court to alter or add charge before judgement under s
158 of CPC. In this case, the alternative charge did not prejudiced the appellants
thus there was no miscarriage of justice.
 Section 167 provides that if in the case mentioned in section 166 the accused is
charged with one offence and it appears that he committed a different offence for
which he might have been charged under the provisions of that section, he may
be convicted of the offence which he is shown to have committed although he
was not charged with it.
 In Lew Cheok Hin v Reg (1956) the accused was charged under section 420 of
PC. At the end of prosecution, PP submitted that the offences were cheating
under section 417 of PC. The court considered that the offence under section
417 is slightly different compared to section 402, and because of that the
accused could be convicted with section 417 without amending the charge due to
section 168(2).
 In Sivalingam v PP (1982) the requirement under section 166 and 167 of CPC
must be satisfied before a court can alter or substitute conviction of different
offence. Such power should be exercised within the confines law and under
limited circumstances and great caution subject to restriction as not prejudiced
the accused.
Section 170
 Section 170 refers to the situations and offences where two or more accused
may be tried jointly.
 It provides two situations where if the court thinks just, it may allow more than
one accused to be tried jointly. Firstly, where they are accused of committing the
same offence or different offences in the same of transaction or secondly where
one is accused of committing an offence and the other of abetment or attempt to
commit the same offence.
 Section 170(2) provides three categories of offence committed by accused
person who may be charged and tried jointly
- Theft, extortion, criminal breach of trust, cheating, or criminal
misappropriation
- Receiving or retaining or assisting in the disposal of property and
concealment of property, possession of which has been transferred after such
offence is committed by the first named person
- Abetment or attempting to commit any such last-maned offence.
 In Jayaraman & Ors v PP (1979), it was held that it is court’s discretion as it
thinks fit to allow more than one accused to be tried jointly or separately and not
of the prosecution.
  In PP v Pathmanabhan Nalliannen & Ors, four accused were charged under
section 302 of Penal Code in furtherance of their common intention to murder of
victim and each accused was tried together on four charges. The four of them
were tried jointly in one trial under section 170(1) CPC and for each accused
person, four charge were tried in same trial.
 However, in PP v Muhamad Nasir bin Shaharuddin, it is not essential for the
prosecution to establish that each of them was acting in the furtherance of
common intention as long as they can be acquitted or convicted independently in
the same subject matter of joint charge.
 If the charge is wrongly joined, the court in Chin Choy v PP stated that charge
which are not capable being tried together should be made on separate charge
sheets and the subject of separate trials.
CONVICTION FOR OFFENCE NOT CHARGED
 The general rule is that an accused person should be convicted only for the
offence with which he was charged or with which the charged was amended.
 However, there are four exception in section 167 to section 169 CPC.
Section 167
 Section 167 provides that if in the case mentioned in section 166 the accused is
charged with one offence and it appears that he committed a different offence for
which he might have been charged under the provisions of that section, he may
be convicted of the offence which he is shown to have committed although he
was not charged with it.
 In Lew Cheok Hin v Reg (1956) the accused was charged under section 420 of
PC. At the end of prosecution, PP submitted that the offences were cheating
under section 417 of PC. The court considered that the offence under section
417 is slightly different compared to section 402, and because of that the
accused could be convicted with section 417 without amending the charge due to
section 168(2).
 In Sivalingam v PP (1982) the requirement under section 166 and 167 of CPC
must be satisfied before a court can alter or substitute conviction of different
offence. Such power should be exercised within the confines law and under
limited circumstances and great caution subject to restriction as not prejudiced
the accused.
Section 168
 Section 168 provides that if the accused is charge for an offence he may be
convicted of having attempted to commit that offence, although the attempt is not
separately charged.
 In Quinn and Howland v R the accused could be convicted for an attempt for
robbery although he was tried for robbery.
Section 169(1)
 Section 169(1) provides that when a person is charged with an offence
constituting of several particulars but only some of those particulars are proved
which constitute a minor offence, then he may be convicted of the minor offence
though he was not charged of it.
 In Latip bin Ahmad v R the accused was charged under s 148(1) of PC for
rioting armed with a weapon and was convicted under s147 of PC with simple
rioting. It was held that the accused can be convicted under a minor offence of s
147 even though he was not charged with it pursuant to section 169(1).
 However, in Kundan Singh & Ors v PP the accused persons were charged
under s 147 of PC with simple rioting and were convicted by magistrate for
voluntarily causing hurt under s 323 of PC. It was held that the accused persons
could not be convicted under s 323 because it was not a minor offence under s
169(1) CPC.
Section 169(2)
 Section 169(2) provides that when the accused is charged with an offence and
the facts are proved which reduce it to a minor offence, he may be convicted of
the minor offence although he is not charged with it.
OUTSTANDING CHARGES
 Section 171 provides that if there is more than one charge and the accused is
convicted on one or more charges, the prosecution may, with the consent of the
court, withdraw the other charges. The court may also on its own motion stay the
inquiry of trial of those remaining charges.
 In the case of PP v Syed Feisal bin Yahya the accused was initially charged
under s 39B (1) (a) of DDA. After that, the DPP tendered alternative charge of
second offence in which the accused pleaded guilty. The DPP applied to
withdraw the first charge. The judge applied s 171 of CPC and acquitted the
accused on first charge.
 In addition, section 171A of CPC provides that if there are many charges
against the accused, at the end of trial on one charge, the court may take into
consideration any other outstanding offences which have been admitted by the
accused when sentencing, provided that both the prosecution and the accused
consent. When such consent is given, the court shall record it and later the
accused not be liable to be charged for outstanding offences unless the
conviction which has been made is set aside.
 In Abang Zailan bin Abang Zainal v PP the accused pleaded guilty to six
charge of cheating. The record showed that three charge out of six charge were
withdrawn and taken into consideration in sentencing. The accused was
convicted on the remaining three charges. The record showed that the appellant
was acquitted of the other three charged.
 The court held that the appellant must consent to charge being taken in
consideration and the record did not show that the appellant had consented three
charge being taken into consideration. The record also did not show that the
court had exercised its discretion to take the offence into consideration in
sentencing the accused. When the offence were taken into consideration, the
offender would not be liable to be charged or tied in respect of the same.
 In Hashim bin Pawanchee & Anor v PP two appellants were charged and
convicted for six offence under Penal Code where both appellants pleaded guilty.
Before sentence was passed, the respondent tendered 112 outstanding offence.
After considering the mitigating factors, both appellant were sentence for each of
six charges and the sentence were consecutively. The court held that, it is within
the discretion of magistrate to pass consecutive sentence but however in passing
sentence the court needs to consider the mitigating factor, which the plea of
guilty, the outstanding offences agreed to be taken into consideration, and the
maximum term of imprisonment of offence.