TAN EE SENG v Pendakwa Raya

Case Significance

Illustrates the narrow circumstances, such as mala fides, oppression or abuse of process, in which a court will exercise its inherent jurisdiction to quash a charge before trial, the distinction between a defect in a charge and an issue of merit, and the curability of charge defects under sections 156 and 422 of the Criminal Procedure Code where no prejudice results.

This High Court decision at Butterworth concerns an application, invoking the court's inherent jurisdiction, to quash or set aside a criminal charge before trial. The applicant had been charged in the Sessions Court under section 471 of the Penal Code, punishable under section 465, with using a forged document as genuine, and applied to have the charge struck out or, alternatively, for a permanent stay of the proceedings and a discharge. Two lines of complaint were advanced. The first was that the charge was defective, in that it failed to meet the requirements of sections 152, 153 and 154 of the Criminal Procedure Code, and in particular omitted particulars of the manner in which the offence was said to have been committed. The court examined the distinction between an element of an offence and a mere particular, and whether any omission had caused the applicant prejudice, noting that a defect of this kind may be curable under sections 156 and 422 of the Criminal Procedure Code where no prejudice results. The second was that the court should exercise its inherent jurisdiction to quash the charge on the ground of exceptional circumstances, such as mala fides, oppression or an abuse of process. The court held that the matters raised were, in substance, issues going to the merits that required a trial to resolve, and that to discharge and acquit the applicant at this early stage would prejudice the prosecution by preventing it from calling its evidence. Emphasising the constitutional position of the prosecution under Article 145(3) of the Federal Constitution, the court dismissed the application and returned the case to the Sessions Court to be tried. The judgment is a useful illustration of the narrow circumstances in which a court will exercise its inherent jurisdiction to quash a charge before trial, and of the distinction between a defect in a charge and an issue of merit.