ANUAR BIN GHAZALI

ANUAR BIN GHAZALI

The Two Amended Charges were defective for non-compliance with s 154 CPC because they failed to identify the contract and terms alleged to have been breached; the defect prejudiced the accused's right to be informed and to prepare his defence and amounted to an abuse of process; s 156 CPC does not cure pre-trial defects raised before commencement of trial and cannot be read to oust the court's inherent jurisdiction to strike out oppressive or constitutionally infirm proceedings; therefore the High Court allowed the application and struck out the amended charges.

Citation
BA-44-21-01/2020 (Mahkamah Tinggi)
Parties
Pemohon: Anuar bin Ghazali; Responden: Pendakwa Raya
Court
High Court
Jurisdiction
Malaysia
Judgment Date
7 August 2020
Case Number
BA-44-21-01/2020 (Mahkamah Tinggi)
Procedural Posture
Criminal Application to Strike Out Amended Charges / High Court Hearing and Judgment on Pre Trial Application
Outcome
Application allowed
Legal Topics
Criminal Breach of Trust (s 405 Penal Code), Particulars of Charge (s 154 Cpc), Effect of Errors in Charge (s 156 Cpc), Inherent Jurisdiction to Prevent Abuse of Process, Right to Fair Trial (art 5(1) Federal Constitution), Separation of Powers (art 121 Federal Constitution)
Source Language
Malay/English
Criminal Law Constitutional Law Procedural Law Judicial Review/remedies Criminal Breach of Trust (s 405 Penal Code) Particulars of Charge (s 154 Cpc) Effect of Errors in Charge (s 156 Cpc) Inherent Jurisdiction to Prevent Abuse of Process +2 more

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Parties

Anuar bin Ghazali

Pemohon

Pendakwa Raya

Responden

Procedural Posture

Criminal Application to Strike Out Amended Charges / High Court Hearing and Judgment on Pre Trial Application

Legal Issues

  1. 1 Whether the amended charges complied with s 154 CPC by specifying the manner/contract and terms alleged to be breached
  2. 2 Whether the High Court had been functus officio/res judicata on the s 154 issue
  3. 3 Whether the High Court has inherent jurisdiction to strike out criminal proceedings as abuse of process for pre-trial defects

Ratio Decidendi

The Two Amended Charges were defective for non-compliance with s 154 CPC because they failed to identify the contract and terms alleged to have been breached; the defect prejudiced the accused's right to be informed and to prepare his defence and amounted to an abuse of process; s 156 CPC does not cure pre-trial defects raised before commencement of trial and cannot be read to oust the court's inherent jurisdiction to strike out oppressive or constitutionally infirm proceedings; therefore the High Court allowed the application and struck out the amended charges.

Court Disposition

Application allowed

Orders

  • Two amended charges in the magistrate court (criminal breach of trust charges) struck out for non-compliance with s 154 CPC and abuse of process