RAJENDRAN A/L KRISHNAN v Pendakwa Raya [Polis Diraja Malaysia (PDRM)]

Case Significance

Illustrates when a defective charge will lead an appellate court to quash a conviction: omitting an essential element of an offence under section 186 of the Penal Code, in a way that prejudices the accused, justified allowing the appeal and a discharge on that charge under section 316 of the Criminal Procedure Code, while an unargued ground of appeal on another charge failed.

This High Court decision at Shah Alam, sitting in its appellate criminal jurisdiction, concerns an appeal by an accused against convictions entered by a Magistrate at Kajang on several charges, one of which was said to be defective. The appellant had faced five charges before the Magistrate. The appeal focused on a charge under seksyen 186 Kanun Keseksaan (section 186 of the Penal Code — obstructing a public servant in the discharge of his functions), the complaint being that the charge was defective because it did not incorporate the second essential element of the offence. Connected questions were whether the Magistrate had erred in failing to comply with seksyen 163 Kanun Tatacara Jenayah (section 163 of the Criminal Procedure Code), whether the defect in the charge had prejudiced the appellant, and whether the Magistrate's failure to make a finding on the defect justified appellate intervention.

The court partly allowed the appeal. On the section 186 charge (exhibit P4), it accepted that the omission of an essential element rendered the charge defective in a way that had occasioned prejudice to the appellant, and, exercising its powers under seksyen 316 Kanun Tatacara Jenayah (section 316 of the Criminal Procedure Code), it allowed the appeal against both conviction and sentence on that charge and discharged and acquitted the appellant of it. In contrast, on a further charge (exhibit P5), the court noted that although the appellant purported to appeal against the whole of the Magistrate's decision, no grounds had been advanced in the petition of appeal or in written or oral submissions in respect of that charge; it therefore maintained the Magistrate's decision on P5. The judgment illustrates when a defect in a charge, omitting an essential element and causing prejudice, will lead an appellate court to quash a conviction, and the consequence of failing to argue a ground of appeal.