Pendakwa Raya v Muhammad Shahmizal Bin Azizan (P-05(LB)-232-05/2022)

MUHAMAD SHAHMIZAL BIN AZIZAN

HASLAINI BINTI ABDUL AZIZ

MOHD ALIFF BIN IDRIS

SAYAD BOSHOR BIN MOHD HASHIM

NURUL BASHAR BIN MOHD HASHIM

ZULKIFLI BIN SAID

Muhamad Shahmizal Bin Azizan (No. K/P: 930719-02-5825)

Haslaini Binti Abdul Aziz (No. K/P: 810116-03-6158)

Mohd Aliff Bin Idris (No. K/P: 840331-07-5093)

Sayad Boshor Bin Mohd Hashim

Nurul Bashar Bin Mohd Hashim

Zulkifli Bin Said (No.K/P: 700515-02-5483) CORAM AHMAD ZAIDI BIN IBRAHIM, JCA. LIM CHONG FONG, JCA. NOORIN BINTI BADARUDDIN, JCA. GROUNDS OF JUDGMENT INTRODUCTION [1] This appeal concerns a defective criminal charge. [2] The Appellant is the Public Prosecutor. [3] The Respondents are individuals who were charged as the accused persons. [4] The appeal was heard on 26th September 2024 and was subsequently allowed. [5] We now set out the grounds of our decision below. BACKGROUND [6] According to the Appellant, on 21st June 2018, the Second and Third Respondents raided a container used as sleeping quarters at a construction site in Bertam Perdana, Seberang Perai Utara, during the night. The First Respondent was alleged to have stood guard outside the container. The Second and Third Respondents, claiming to be immigration officers, demanded that one Taiful Islam ( ), a Bangladeshi national, produce his passport. [7] Third Respondents purportedly handcuffed him and placed him in a car, directing him to sit between the Fourth and Fifth Respondents. The Third Respondent, accompanied by the Second Respondent, then drove the vehicle to a house situated within an oil palm estate at Lot 3545, Ladang Felda, Gunung Bongsu, Kedah. [8] Upon arrival at the said estate house, the Second to Fifth Respondents were said to have escorted the handcuffed Victim into the premises, where the Sixth Respondent was awaiting therein. [9] At the estate house, the Fourth Respondent allegedly demanded a payment of RM50,000.00 from the Victim. The Victim informed him that he did not possess such an amount. [10] In response, the Fourth Respondent is said to have assaulted the Victim and subsequently placed a parang at his neck, demanding a reduced sum of RM22,000.00 to be paid in Bangladesh. The Victim was phone to arrange for the payment demanded by the Fourth Respondent. [11] demanded time, the Fourth Respondent once again forced the Victim to contact his father, while subjecting the Victim to further assault. It was hear the assault taking place. [12] Eventually, bKash account in Bangladesh, the details of which were provided by the Fifth Respondent. [13] Following the payment, the Fourth and Fifth Respondents brought the Victim to a shop lot located at Kampung Batu 10, Kampung Terap, Serdang, Kedah. On 24th June 2018 at approximately 12.15 a.m., a team of police officers was deployed to rescue the Victim. The Victim was found locked in a room inside the shop lot, together with the Fifth Respondent, while the Fourth Respondent was standing guard outside. [14] The police officers successfully rescued the Victim and arrested both the Fourth and Fifth Respondents. [15] Following a full investigation, the Respondents were charged by the Appellant under the Kidnapping Act 1961 ( ) on 29th June 2018. IN THE HIGH COURT [16] The initial charge made against the Respondents in the magistrate court reads as follows: PERTUDUHAN/CHARGE BAHAWA KAMU BERSAMA SAMA 21 JUN 2018 JAM LEBIH KURANG 10.45 MALAM DI KAWASAN TAPAK PEMBINAAN PERUMAHAN BERTAM PERDANA, KEPALA BATAS, DI DALAM DAERAH SEBERANG PERAI UTARA, DI DALAM NEGERI PULAU PINANG, BAGI MENERUSKAN NIAT BERSAMA KAMU SEMUA, BAGI MAKSUD MENDAPATKAN WANG TEBUSAN LEBIH KURANG BANGLADESHI THAKA 400 RIBU TELAH MENAHAN SEORANG LELAKI WARGANEGARA BANGLADESH BERNAMA TAIFUL ISLAM NO. PASPOT , BP0706172 DENGAN CARA MELARIKAN DAN MENGHALANG SECARA SALAH TAIFUL ISLAM NO PASPOT BP0706172 DAN OLEH YANG DEMIKIAN KAMU TELAH MELAKUKAN SATU KESALAHAN DI BAWAH SEK. 3 AKTA CULIK 1961 DAN BOLEH DIHUKUM DI BAWAH SEKSYEN YANG SAMA DAN DIBACA BERSAMA DENGAN SEKSYEN 34 KANUN KESEKSAAN. HUKUMAN BOLEH DIHUKUM DENGAN HUKUMAN MATI ATAU DIPENJARA SEUMUR HIDUP DAN JIKA TIDAK DIHUKUM MATI, BOLEH DIKENAKAN SEBATAN. However, upon transfer of the case to the High Court, the amended charge made against the Respondents read as follows ( ): BAHAWA KAMU BERSAMA SAMA 21 JUN 2018 JAM LEBIH KURANG 10.45 MALAM DI KAWASAN TAPAK PEMBINAAN PERUMAHAN BERTAM PERDANA, KEPALA BATAS, DI DALAM DAERAH SEBERANG PERAI UTARA, DI DALAM NEGERI PULAU PINANG, BAGI MENCAPAI NIAT BERSAMA MEMINTA WANG TEBUSAN BERJUMLAH LEBIH KURANG 400 RIBU BANGLADESHI THAKA, TELAH MENCULIK TAIFUL ISLAM WARGANEGARA BANGLADESH NO. PASPOT BP0706172. OLEH YANG DEMIKIAN, KAMU TELAH MELAKUKAN KESALAHAN YANG BOLEH DIHUKUM DI BAWAH SEK. 3 (1) AKTA PENCULIKAN 1961 [AKTA 365] DAN DIBACA BERSAMA-SAMA DENGAN SEKSYEN 34 KANUN KESEKSAAN. [17] After trial, the learned High Court judge on 29th April 2022 at the close of the prosecution case found that there is no prima facie case proved against the Respondents by reason that the Charge is defective and hence a nullity ( ). [18] The learned High Court judge held as follows in the grounds of Judgment which has been reported in [2022] 6 MLRH 660: [22] In determining whether an ommission by the Prosecution to state in the Charge the specific act of kidnapping under s 3(1) of the Act rendered the charge defective and a nullity, it would be imperative to first determine whether those acts are ingredients of the offence or just particulars of a charge. In endeavouring to arrive at that determination this Court will refer to and discuss a number of decisions which in this Court's view are relevant and instructive. Those cases are Ravindran Ramasamy v. PP [2015] 3 MLRA 112; [2015] 6 MLJ 509; [2015] 3 CLJ 421; Goh Keat Peng v. PP [2001] 1 MLRH 168; [2001] 3 MLJ 172; [2001] 2 CLJ 498; Uthayakumar Ponnusamy v. PP [2003] 1 MLRH 261; [2003] 5 MLJ 433; [2003] 2 CLJ 549; [2003] 3 AMR 592; Karpal Singh Ram Singh v. PP & Another Appeal [2016] 5 MLRA 106; [2016] 8 CLJ 15; Fan Yew Teng v. PP [1975] 1 MLRA 439; [1975] 2 MLJ 235; PP v. Mohamad Sabu [2017] MLRHU 251; [2017] 7 CLJ 214, Ab Malek Atan v. PP [2002] 2 MLRH 128; [2002] 4 MLJ 84; [2002] 6 CLJ 405; PP v. Mohd Zhafri Abu Baker & Another Case [2021] MLRHU 589; Jeffri Abdullah & Ors v. PP [2015] 5 MLRA 288; [2015] 6 MLJ 824; [2015] 6 CLJ 438; [2015] 5 AMR 284; and Sundar Subramaniam lwn. Pendakwa Raya & Satu Kes Yang Lain [2018] MLRAU 456. [23] Reference is first made to the Federal Court's decision in Ravindran where the Federal Court had the occasion to discuss the differences between the ingredients of an offence and particulars of a charge. Jeffry Tan FCJ speaking for the Court stated:

Pursuant to s 156 of the CPC, 'no error in stating the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by that error or omission' (the Indian equivalent, s 215 of the Indian Criminal Procedure Code, ends with the words 'and it has occasioned a failure of justice'). However, in view of s 422, for an error or omission to be material, it is not enough that the accused has been misled; there must also be a failure of justice. 'Whether any court should apply s 422 aforesaid will depend, among other things, on whether the irregularity involves the breach of a principle of general importance to the administration of criminal justice. If it does, the court would not apply s 422, as this appears to us to be the same thing as the irregularity having occasioned a failure of justice' (Yap Sing Hock & Anor v. PP [1992] 1 MLRA 86; [1992] 2 MLJ 714; [1992] 1 CLJ Rep 356; [1992] 1 AMR 47 per Peh Swee Chin SCJ, later FCJ, delivering the judgment of the court).

It could also be noted that the 'error' alluded to in s 156 of the CPC is the error in stating the offence or the particulars required to be stated in the charge, and not the error in stating the ingredients of an offence. That important distinction, whether an error in stating the particulars or an error in stating the ingredients, must be drawn for the purposes of ss 156 and/or 422 of the CPC. This is because where it was an error or omission in stating the ingredients of an offence, it had been consistently held by the courts that the accused would have been misled and that there must have been a failure of justice. Low Seng Wah v. Public Prosecutor [1961] 1 MLRH 683; [1962] 1 MLJ 107, was the exceptional case, where Neal J held that the omission of an essential ingredient in the charge was not fatal, because of the unique provisions of s 321 of the CPC (since repealed) which provided that 'No judgment, sentence or order of magistrate court shall be reversed or set aside unless it is shown to the satisfaction of the court of a judge that such judgment, sentence or order was either wrong in law or against the weight of the evidence'. Low Seng Wah v. Public Prosecutor, which was primarily decided under s 321, is no precedent on s 156 of the CPC.

But in cases decided primarily under ss 156 and/or 422 of the CPC, courts had refused to invoke those provisions where it was an error or omission in stating the ingredients of an offence.

In PP v. Mahfar Sairan [2000] 3 MLRH 42; [2000] 4 MLJ 791; [2000] 7 CLJ 600; [2000] 4 AMR 4913, Kang Hwee Gee J, as he then was, drew attention to the vast difference between the ingredients of an offence as opposed to the particulars of the act, and the need to distinguish between the ingredients of an offence and its mere particulars: Steven A Hirsch, in an article entitled 'Yap Sing Hock v. PP: Time For A Quick And Decent Burial' [1993] 3 MLJ Lexis, draws a distinction between the elements (or what is more commonly described in courts as ingredients and mere particulars and pointed out that a charge is bad only where the element specified therein had prejudiced the accused under the fair notice rule. He wrote at p ixxvii of his article which he fortified by reference to numerous case decisions, which I have no reason to doubt as correctly representing the law: The court failed to appreciate that every criminal charge contain two distinct types of averment: (i) a recitation of or reference to the elements (or 'ingredients') of the underlying statutory offence; and (ii) particulars which are not themselves elements of the underlying offence but which 'flesh out' the details of the allege crime. The first sort of averment, as the court correctly pointed out, is subject to the rule of strict construction in favour of liberty. [26] In Karpal Singh Ram Singh (supra), the Court of Appeal had to decide whether the charge was defective due to a failure by the Prosecution to state in the charge the seditious tendencies under s 3(1) of the Sedition Act 1948. In delivering her judgment Tengku Maimun Tuan Mat JCA (as Her Ladyship then was) referred to the Federal Court's decision in Fan Yew Teng v. PP (supra):

(64)The issue of defective charge was canvassed in Fan Yew Teng v. PP [1975] 1 MLRA 439; [1975] 2 MLJ 235. This issue was dismissed by the Federal Court wherein Lee Hun Hoe CJ (Borneo) said: "The fourth ground of appeal is that the appellant was given insufficient particulars of the offence alleged against him and, therefore, the charge was bad in law. Mr Karpal Singh argued that as s 3(1) of the Sedition Act specifies six different kinds of seditious tendencies, the prosecution should have specified in what way the publication complained of was seditious, and that failure of the prosecution to do so embarrassed the appellant and rendered the charge bad in law. He referred to a specimen charge at p 317 of Ratanlal's Law of Crimes, 22nd edition, under s 124A of the Indian Penal Code. He also cited Lim Beh v. Opium Farmer, Public Prosecutor v. Lee Pak and Pek Tin Shu v. Public Prosecutor. With all due respect, we do not think that there is any merit in this argument. The forms of charges set out in Ratanlal's Law of Crimes merely serves as a general guide and bear no relation to any particular set of facts. The offence of murder is committed only if there was present intention or knowledge of the kinds mentioned in s 299 and 300 of the Penal Code, and yet when a person is charged with murder, it is unnecessary for the prosecution to specify in the charge the particular intention or knowledge set out in the two sections on which it relies, and indeed it can shift its ground during the course of the prosecution. In our judgment, in a prosecution under s 4(1)(c) of the Sedition Act, it is equally unnecessary for the Public Prosecutor to specify in the charge on which of the six tendencies set out in s 3(1) he relies and that it is open to him during the course of the trial to pick and choose."

Guided by the above decision of the Federal Court, I similarly dismissed the issue of defective charge as being devoid of any merit. [28] Upon careful scrutiny of both the charges as framed, it is my view for the reasons stated in para 25 above that they are defective in substance and not merely form or inadequate particulars. They hence do not disclose any offence. Put simply, they are bad in law. In the circumstances, this is per se sufficient to dismiss the appeal. [36] In conclusion, this Court finds that the Prosecution had failed to state in the Charge an ingredient of the offence of kidnapping under s 3(1) of the Act when it failed to specify which of the acts provided thereunder that the Prosecution intended to prove against all the accused. It was not available to the Prosecution to merely name the offence without describing specifically the act that all the accused were accused of committing. Section 3(1) of the Act has expressly stated 3 distinct and separate acts of kidnapping and any one of them is an essential ingredient in proving the offence of kidnapping. For that reason, it was not open to the Prosecution to choose and prove the relevant act in the course of the trial. The Charge was therefore defective and a nullity. [37] Sections 156 and 422 of the CPC cannot aid the Prosecution as this was not a situation where there was an error in stating the offence or the particulars required to be stated in a charge. The omission goes to the root of the Charge and hence there does not arise for consideration the question of whether all the accused persons were misled by that error or omission. The fact that each of the accused was represented by counsel at the trial did not mitigate the Prosecution's failure. The accused persons were entitled to take advantage of the Prosecution's failure at the end of the Prosecution's case. [38] It would be pertinent to quote Abang Iskandar JC (as he then was) in PP v. Uthaya Kumar Ponnusamy & Ors [2008] 4 MLRH 748; [2011] 7 MLJ 575; [2011] 1 CLJ 360 where His Lordship held:

The purpose of a charge, to my mind, is primarily to ensure that a person who is being accused of a criminal offence, is given due notice of the offence as mentioned in the charge. Invariably, in most cases, it defines what the offence is all about. Generally, in doing so, the charge bears out the essential ingredients of the offence contained in the charge and in so doing, the accused is given the earliest legal notice that his impugned conduct has come to be within the legal sphere of a definitive criminal offence. In the case of Lim Beh & Ors v. Opium Farmer [1842] 3 Ky 110, the accused was convicted on a charge framed as 'infringing the Opium Regulation.' The accused appealed on the ground that the charge preferred against him was vague. The High Court agreed and said: If there be one principle of criminal law and justice clearer and more obvious than all others, it is that the offence imputed must be positively and precisely stated, so that the accused may know with what he is charged and may be prepared to answer the charge in the best way.

So, in the main, a charge is about the notification of the legal elements of the offence which the accused has the right to know in order that he will be able to prepare his defence and be prepared and ready to usefully face the charge during trial. If a charge does not sufficiently bear out the essential feature(s) of the offence, it may become a charge for an offence that is not known in law, and as such it becomes liable to dismissal by the court because it is then a groundless charge and that the accused has been embarrassed in the preparation of his defence. A groundless charge may be dismissed under s 173(g) CPC.

To my mind, a defence is embarrassed not so much for want of particulars (unless the particulars are necessary to describe the offence), but rather because the charge is not properly framed so as to omit mentioning any of the legal ingredients or elements that constitute the offence (emphasis added), or in putting into a charge such a description of the impugned conduct that actually amounts to a duplication. That, in a nutshell is the true purpose of a charge.

There is no denying that a charge is a very vital and important first step in a criminal prosecution. In reality, once a charge is filed, it sets the criminal prosecution into motion. Mere errors in the charge are not inevitably fatal as long as such errors have not occasioned a failure of justice to the accused person. What the law requires of a charge is that it must give sufficient notice to the accused person so as to enable him to prepare his defence. A perfect charge, if indeed a charge could be described as such, is one that fulfills within its parameters, all the legal requirements pertaining to the offence with which it is concerned, so as to facilitate reasonable preparation of the defence on the part of the accused person. [39] On the basis that the Charge was defective and a nullity, the 1st, 2nd, 3rd, 4th, 5th and 6th accused are thereby discharged and acquitted of the offence of [19] The Appellant is dissatisfied with the Judgment and accordingly on 9th May 2022 appealed to the Court of Appeal. FINDINGS OF THIS COURT [20] The law on appellate intervention in an after-trial criminal appeal is settled. In Isidro Leonardo Quito Cruz v. PP [2013] 2 CLJ 1025 (FC) Abdul Hamid Embong FCJ held as follows with emphasis added by us: The Federal Court too does not make its own findings of fact. (see PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457). The function of this court, at this final stage of appeal in dealing with the findings of fact by the courts below is now limited in its scope, confined to the advice of the Privy Council in this passage from Antonio Dias Caldeira v. Frederick Augustus Gray [1934] 1 LNS 5; [1936] MLJ 137, 138 which says: ... that the functions of an appellate court, when dealing with a question of fact, and a question of fact in which questions of credibility are involved, are limited in their character and scope, and that in an appeal from a decision of a trial judge based on his opinion of the trust-worthiness of witnesses whom he has seen, an appellate court must in order to reverse, not merely entertain doubts whether the decision below is right but must be convinced that it is wrong. Now, it settled law that it is no part of the function of an appellate court in a criminal case or indeed any case to make its own findings of fact. That is a function exclusively reserved by the law to the trial court. The reason is obvious. An appellate court is necessarily fettered because it lacks the audio-visual advantage enjoyed by the trial court. This case, it must be underlined, raises for the most part essentially factual issues on which the courts below agreed. On such issues, the rule is that an appellate court should not reverse the trial judge in the absence of palpable and overriding error which affected his or her assessment of the facts. There is also the now trite principle that this court will not interfere with any concurrent findings of fact by both the trial court and the intermediate appellate court. Unless there is a plain and overriding error which affected their assessment of facts. (see Lim Geak Liang v. East West UMI Insurance Bhd [1997] 4 CLJ 405; [1997] 3 MLJ 517. Also, Low Kian Boon & Anor v. PP [2010] 5 CLJ 489 [21] It is, in other words, a review of the Judgment here has to be undertaken by us. Appellate intervention is only warranted where there is a plain error committed by the learned High Court judge. [22] Upon our review, we find that the sole and pivotal point in issue here in whether the Charge is defective as so found by the learned High Court judge. This is not a question of fact but a question of law on the construction of the Charge. [23] The parties basically repeated their submissions made before the learned High Court judge. [24] According to the Appellant, the general reference to the offence of kidnapping without particularly stating in the Charge as to which specific act under s. 3(1) KA the Appellant intended to rely on in proving the offence of kidnapping is sufficient to describe the offence. It does not render the Charge defective and a nullity and in any event curable under ss. 156 and 422 of Criminal Procedure Code ( ). Reliance is made on the case of Saw Tuan Cheong v. Public Prosecutor [1946] 1 MLRA 26 which held that the omission in adding particulars to the charge did not render the charge defective and is curable under s 156 of the CPC. There is only the mere absence of particulars of the Charge which need not be specifically stated. [25] Moreover, and notwithstanding that it was not stated in the Charge, the Appellant may still prove which act of kidnapping it was relying on in the course of the trial, which is primarily wrongful confinement here. Reliance is also made on the case of Sundar Subramaniam lwn. Pendakwa Raya & Satu Kes Yang Lain [2018] MLRAU 456 (CA) where the charge was crafted in the same fashion as the Charge here. This Court found the charge to be valid and hence ought to be similarly applied here. [26] The Respondents in rebuttal relied on the cases of Ravindran Ramasamy v. PP [2015] 3 MLRA 112 (FC) as well as that of PP v. Mohd Zhafri Abu Baker & Another Case [2021] MLRHU 589 where the failure of the prosecution in clearly stated in the charge which of the acts under s 3(1) of the Act it intended to rely on specifically in proving its case rendered the charge defective and had prejudiced the accused persons. [27] In respect of adequacy of criminal charges, it is gainful to heed the following proposition stated by Jeffery Tan FCJ in Ravindran Ramasamy v. PP (supra): [26] In PP v. Mahfar Sairan [2000] 3 MLRH 42; [2000] 4 MLJ 791; [2000] 7 CLJ 600; [2000] 4 AMR 4913, Kang Hwee Gee J, as he then was, drew attention to the vast difference between the ingredients of an offence as opposed to the particulars of the act, and the need to distinguish between the ingredients of an offence and its mere particulars: "Steven A Hirsch, in an article entitled 'Yap Sing Hock v. PP: Time for a quick and Decent Burial' [1993] 3 MLJ 20 Lexis, draws a distinction between the elements (or what is more commonly described in courts as ingredients and mere particulars and pointed out that a charge is bad only where the element specified therein had prejudiced the accused under the fair notice rule. He wrote at p lxxvii of his article which he fortified by reference to numerous case decisions, which I have no reason to doubt as correctly representing the law: 'The court failed to appreciate that every criminal charge contains two distinct types of averment: (i) a recitation of or reference to the elements (or 'ingredients') of the underlying statutory offence; and (ii) particulars which are not themselves elements of the underlying offence but which 'flesh out' the details of the allege crime. The first sort of averment, as the court correctly pointed out, is subject to the rule of strict construction in favour of liberty. [27] The other case where the court drew the distinction between particulars and ingredients was Shawal Hj Mohd Yassin v. PP [2006] 2 MLRH 503; [2006] 4 MLJ 334; [2006] 6 CLJ 392, where it was held by Azahar Mohamed JC, as he then was, that ss 156 and 422 of the CPC only cure technical errors. Azahar Mohamed JC also enunciated on 'miscarriage of justice' and 'prejudice' in the context of ss 156 and 422 of the CPC, which enunciation we approve and now reproduce below in extenso: "In my view s 156 has application only in a situation where there is an error either in stating the offence or the particulars required to be stated in the charge or there is an omission to state the offence or those particulars. In other words that section provides for a cure should there be any non-compliance with the technical provisions of the law. I do not think that provision can be invoked in the case at hand in a situation where the charge was defective as disclosing no offence under the section of the Act. I do not consider that this is an irregularity curable under s 156. In the same way, the application of s 422 is constrained to remedy no more than technical defects in the charge. To me where a trial in the court below is conducted on the basis of a charge which is defective as not disclosing an offence under the relevant section, it is an illegality which cannot be cured by s 422. I should point out that the case of Msimanga Lesaly v. PP [2004] 2 MLRA 429; [2005] 4 MLJ 314; [2005] 1 CLJ 398; [2004] 6 AMR 496 relied on by the learned deputy is distinguishable on its facts ... In stark contrast to that case, in the case before me it was not a minor defect; the charge was defective as disclosing no offence in law. The defect in the charge was a matter of substance and not merely of form. This was not a mere technical non-compliance of any provision of the law which can be condoned as an irregularity. I do not think it can be cured without causing injustice to the appellant. In my view, this was not a defect, disregarding it would not occasion a miscarriage of justice. To me the charge as framed did not disclose any offence and therefore I have no doubt that the defect of this kind was an illegality. I think the appellant was left in doubt as to the offence of which he had been convicted and sentenced. It is a fundamental principle of criminal law in our country that an accused person should know accurately of what offence he has been convicted and sentenced. In my judgment the error in the charge did cause prejudice and injustice to the appellant. In the end, I have no hesitation in saying that the charge framed against the appellant was bad in law. When looked in this way, one can see that there has been a substantial miscarriage of justice. As a consequence, the conviction in this case was a nullity." [28] The following cases did not draw the distinction between particulars and ingredients. But they nonetheless exemplify that ss 156 and/or 422 would not be invoked to cure an error or omission in stating the ingredients of an offence. [28] First and foremost, we find that the learned High Court judge in the Judgment construed the initial charge proffered in the magistrate court and not the Charge proffered in the High Court. This is ipso facto fatal. [29] Second and that notwithstanding, we have meticulously read the Charge and are satisfied that it suffices the Appellant has pleaded kidnapping for ransom (menculik bagi mencapai meminta wang tebusan) in the Charge. This is the requisite obligatory ingredient for purposes of s. 3(1) KA. It has, in our view, been fulfilled. In other words, the offence has been disclosed in the Charge. Furthermore, based on the alleged facts of this case by the Appellant, it seems to us that the Victim had been abducted, wrongfully confined as well as wrongfully abducted by the concerted acts of the Respondents. There is no singular act but these collective acts formed the kidnapping act here. [30] It follows that the Respondents cannot be misled in the circumstances even if abduction, wrongful confinement or wrongful abduction has not been stated. See Aisyah Mohd Rose & Anor v. PP [2016] 1 CLJ 529 (CA). [31] Third, it is however not obligatory that the act of abduction, wrongful confinement or wrongful restraint is specifically stated because these, in our view, constitute particulars of the Charge made pursuant to s. 3(1) KA. We are fortified here by the case of this Court of Sundar Subramaniam lwn. Pendakwa Raya & Satu Kes Yang Lain (supra). [32] In the premises, albeit a defective charge may be cured pursuant to ss. 156 and/or 422 of the CPC, we find it is unnecessary to delve into them because the Charge is not defective on the aforementioned reasons alluded by us. [33] Six and finally, we also noticed that the learned High Court judge in finding there is no prima facie case proved did not evaluate the case on the evidence adduced by the Appellant whatsoever in the Judgment. The learned High Court judge merely relied on the defective Charge. CONCLUSION [34] appellate intervention here by reason that the learned High Court judge is plainly wrong in acquitting and discharging the Respondents on the premise the Charge is defective and hence a nullity. There has not been any finding made whether the charge of kidnapping has been established based on the evidence adduced by the Appellant. [35] Consequently, the appeal is allowed and the case is remitted to the High Court before the same learned High Court judge to deliberate and decide whether a prima facie case has been made out based on the evidence adduced by the Appellant. Dated this 18th August 2025 Sgd. LIM CHONG FONG COURT OF APPEAL JUDGE LIST OF COUNSELS: Counsels for the Appellant DPP Dhiya Syazwani Izyan Binti Mohd Akhir. Solicitors for the Appellant ATTORNEY GENERAL CHAMBERS, Appellate and Trial Division, Level 5, No. 45 Lot 4 G7, Presint 4, Persiaran Perdana 62100 Putrajaya. Counsel for the 4th Respondent

Ridha Abdah Subri;

. Solicitors for 4th Respondent MESSRS. RIDHA & CO. Advocates & Solicitors, 13A-07, Plaza Azalea, No. 6, Persiaran Bandaraya, Seksyen 14, 4000 Shah Alam, Selangor. Counsel for the 5th Respondent

Joseph Tan; and

Lau Yih Ling. Solicitors for 5th Respondent MESSRS. TAN CHEE KEONG & CO. Advocates & Solicitors, No. 23-2A, Jalan Perindustrian, PBP ½, Taman Perindustrial PBP, 47100 Pusat Bandar Puchong, Selangor Darul Ehsan. STATUTE/LEGISLATION REFERRED TO: s. 3 (1) of Kidnapping Act 1961; s. 34 of Penal Code; . ss. 156 and/or 422 of the Criminal Procedural Code. CASES REFERRED TO: Isidro Leonardo Quito Cruz v. PP [2013] 2 CLJ 1025; Saw Tuan Cheong v. Public Prosecutor [1946] 1 MLRA 26; Sundar Subramaniam lwn. Pendakwa Raya & Satu Kes Yang Lain [2018] MLRAU 456; Ravindran Ramasamy v. PP [2015] 3 MLRA 112; PP v. Mohd Zhafri Abu Baker & Another Case [2021] MLRHU 589; Aisyah Mohd Rose & Anor v. PP [2016] 1 CLJ 529.