[Timbalan (TPR), Jabatan Peguam Negara] NIK SUHAIMI BIN NIK HUSSEIN

[Timbalan (TPR), Jabatan Peguam Negara] NIK SUHAIMI BIN NIK HUSSEIN

The charge was defective because it failed to allege the statutory elements of Section 354 (it used 'force' instead of 'assault' or 'criminal force' and 'dengan maksud' instead of the requisite intention/knowledge), the English Penal Code is authoritative, the defect concerned ingredients of the offence (not a mere particular) and therefore could not be cured under Sections 156 or 422 CPC; the defect prejudiced the accused and occasioned a failure of justice, so the prosecution did not make a prima facie case and the accused must be acquitted and discharged.

Citation
CF-83-279-11/2021 (Mahkamah Majistret)
Parties
Prosecution: Public Prosecutor; Accused: Nik Suhaimi bin Nik Hussein (NRIC: 641025-06-5637)
Court
Magistrates' Court
Jurisdiction
Malaysia
Judgment Date
13 September 2023
Case Number
CF-83-279-11/2021 (Mahkamah Majistret)
Procedural Posture
Criminal Charge Under Section 354 Penal Code (assault/using Criminal Force to Outrage Modesty) / Magistrate Court Judgment (grounds of Judgment) Resulting in Acquittal and Discharge
Outcome
Accused acquitted and discharged
Legal Topics
Charge Framing and Sufficiency, Ingredients of Offence (mens Rea and Actus Reus), Section 354 Penal Code, Curing Defects: Section 156 CPC and Section 422 CPC, Authoritative Text of Law (english Vs National Language)
Source Language
Malay/English
Criminal Law Criminal Procedure Statutory Interpretation Language of Law Charge Framing and Sufficiency Ingredients of Offence (mens Rea and Actus Reus) Section 354 Penal Code Curing Defects: Section 156 CPC and Section 422 CPC +1 more

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Parties

Public Prosecutor

Prosecution

Nik Suhaimi bin Nik Hussein (NRIC: 641025-06-5637)

Accused

Procedural Posture

Criminal Charge Under Section 354 Penal Code (assault/using Criminal Force to Outrage Modesty) / Magistrate Court Judgment (grounds of Judgment) Resulting in Acquittal and Discharge

Legal Issues

  1. 1 Whether the charge was defective for failing to state the ingredients of Section 354 Penal Code
  2. 2 Whether a defective charge (omission of ingredients) can be cured under Section 156 CPC or Section 422 CPC
  3. 3 Whether the prosecution had established a prima facie case given the defective charge

Ratio Decidendi

The charge was defective because it failed to allege the statutory elements of Section 354 (it used 'force' instead of 'assault' or 'criminal force' and 'dengan maksud' instead of the requisite intention/knowledge), the English Penal Code is authoritative, the defect concerned ingredients of the offence (not a mere particular) and therefore could not be cured under Sections 156 or 422 CPC; the defect prejudiced the accused and occasioned a failure of justice, so the prosecution did not make a prima facie case and the accused must be acquitted and discharged.

Court Disposition

Accused acquitted and discharged

Orders

  • Accused Nik Suhaimi bin Nik Hussein is acquitted and discharged from the charge under Section 354 Penal Code