Pendakwa Raya v ONG SU PING SERENE (BA-42LB-2-08/2024)

(b) permanent privation of the sight of either eye;

(c) permanent privation of the hearing of either ear;

(d) privation of any member or joint;

(e) destruction or permanent impairing of the powers of any member or joint;

(f) permanent disfiguration of the head or face;

(g) fracture or dislocation of a bone;

(h) any hurt which endangers life, or which causes the sufferer to be, during the space of ten days, in severe (emphasis added) [22] the trial before the SCJ showed that PW1 was grievously hurt, as four of S/N 3tkL0oskWEyxbuXmea3A her teeth were proven to have been forcibly extracted. As such, the appellant claimed that paragraphs (e), (f) and (g) of section 320 of the PC applied, and that the offence of grievous hurt had been proven against the respondent. [23] The appellant also referred to the Broad Grounds, and specifically lines 13408 to 13421, which state: liti keterangan SP10 yang mana beliau mengesahkan bahawa wujudnya kecederaan parah yang dialami oleh SP1 dan tahap kecederaan parah adalah akibat pukulan, tendangan, dan pijakan oleh OKT1. Mahkamah merujuk kepada Seksyen 320 yang mentakrifkan cedera parah iaitu grevious hurt iaitu destruction or permanent impairing of the powers of the member joint, of any member joints, pemanent disfiguration of the head or face, fracture or dislocation of a bone. Seksyen 10 mengesahkan sejarah yang diambil oleh bahagian kecemasan menyatakan bahawa mangsa didera berdasarkan kecederaan yang dialami. Ianya adalah konsisten dengan cara yang dibuat terhadap SP1. Tambahan lagi, kecederaan yang dialami berulang kali sehingga menyebabkan kulit muka SP1 menjadi tegang, sakit dan hilang warna kulit. Selain bengkak dan lebam yang bersifat sementara, kecederaan tersebut juga telah mengubah bentuk wajah asal SP1 di beberapa bahagian. Antaranya bibir dan hidung secara kekal dan fungsi ini terjejas dan sehingga perlu (emphasis added) S/N 3tkL0oskWEyxbuXmea3A [24] The SCJ however found that the elements of an offence under section 326 of the PC could not be proven, as the weapon stated in the charge was not produced, and the evidence of the use of the weapon was based only on the uncorroborated evidence of PW1. [25] Notwithstanding this finding, the appellant argued that the evidence before the SCJ disclosed an offence under section 325 of the PC. As such, the appellant claimed that it was incumbent upon the SCJ to exercise his discretion under sections 173(h)(ii) and 167 of the CPC, to amend the charge against the respondent under section 326 of the PC, to a charge under section 325. [26] In considering th the scope and purpose of sections 173(h) and 167 of the CPC. [27] Section 173(h)(ii) of the CPC provides as follows: The following procedure shall be observed by Magistrates in summary trials:

(h)(ii) If the Court finds that a prima facie case has been made out against the accused on an offence other than the offence charged which the Court is competent to try and which in the opinion of the Court it ought to try, the Court shall amend the charge. (emphasis added) S/N 3tkL0oskWEyxbuXmea3A [28] From the provisions of section 173(h)(ii), where the court finds that a prima facie case has been made out against the accused on an offence other than the offence charged, which the court is competent to try and which in the opinion of the court it ought to try, the court shall amend the charge. [29] I am however of the view that the provision does not impose an inflexible duty upon the trial court to reformulate the p whenever the original charge fails. It is clear from prevailing authorities that although the court retains the power to amend a charge under section 173(h)(ii), the primary responsibility for framing and pursuing the appropriate charge rests with the prosecution. [30] In PP v Heng You Nang [1949] MLJ 285, the court held that: Under section 173(h), Subordinate Courts have a duty to consider the charge and amend it if necessary. Nevertheless I do not think that this section makes it incumbent on the Court to search the law for offences which an accused person may have committed. It is for the prosecution to decide what their real complaint against the accused is and to frame their charges or to submit amendments accordingly. No doubt, in a clear case, a President or a Magistrate ought to alter a charge to fit the proved facts; but if the prosecution is unable to reach a conclusion as to the proper charge, which appears to have been the position in this case, it is in my view quite improper to criticise the President for failing to carry out the functions of the prosecuting officer. S/N 3tkL0oskWEyxbuXmea3A (emphasis added) [31] From the above, section 173(h) does not require the court search the law for offences which an accused person may have . Although a trial judge may amend a charge in a clear case, it is not the function of the court to assume the role of the prosecuting officer. [32] A similar principle was reiterated in PP v James Tan [1983] 2 MLJ 173. The High Court agreed with the dicta in Heng You Nang, and further held that the discretion to amend a charge must be exercised judiciously and not where such amendment would occasion injustice or prejudice to the accused. The court recognised that while an amendment may be appropriate where the facts plainly disclose another offence, the court retains the discretion not to amend where the circumstances render such course unfair. [33] Section 167 of the CPC is narrower in scope. The provision reads: with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not [34] The provision permits a conviction on an unframed charge only where the requirements under section 166 of the CPC are satisfied. Section 166 states: S/N 3tkL0oskWEyxbuXmea3A which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of those offences; and any number of the charges may be tried at once, or he may be charged in the alternative with having [35] Section 166 allows the prosecution to charge an accused with multiple offences or in the alternative, when it is unclear which offence the same set of facts will ultimately prove, so that all charges may be tried together and the accused may be convicted of whichever charge the evidence supports at the end of the trial. [36] However, the applicability of section 167 depends upon whether the alternative offence could properly have been charged under section 166 from the outset without occasioning prejudice to the accused. The provision is not intended to permit a fundamentally different prosecution failed. [37] In Lew Cheok Hin v Regina [1956] 1 MLJ 131, the court laid down two essential requirements before such a conviction may be entered:

(a) The unframed charge must have been one which could have been framed and tried concurrently from the outset; and S/N 3tkL0oskWEyxbuXmea3A

(b) The evidence must have been led in such a manner that the same issues of fact would have arisen had the accused originally been charged with the alternative offence. [38] These requirements were affirmed by the Federal Court in Sivalingam v PP [1982] 2 MLJ 172, where it was held that: to warrant a substitution there must be clear evidence that a case for the substituted offence would have been made out or established against the accused in the court below. To put it in another way before there can be an alteration of a finding the appellate court must be satisfied that if the substituted charge had in fact been the original charge, the proceedings at the trial would have taken the same course, and the evidence recorded have been same. Further, if the substituted charge was one of the charges preferred against the accused or was an alternative charge the prosecution evidence would have been sufficient to satisfy the elements to constitute the charge and the accused's evidence must have been substantially unchanged in that the accused's defence would have been the same. (emphasis added) [39] Thus, a conviction for a different offence can only be allowed where the substituted offence is clearly established by the evidence and where it is clear that the defence would have conducted the case in S/N 3tkL0oskWEyxbuXmea3A precisely the same manner had the alternative charge been framed from the beginning. [40] The underlying rationale behind these principles is clear. An accused is entitled to know with certainty the nature of the accusation he faces, to allow him to prepare and present an effective defence. Any amendment or substitution which materially alters the nature of the case after the close of the p to the defence and offend the principles of natural justice. [41] Applying these principles to the present case, I find that the SCJ did not commit any error in declining to amend the charge from a charge under section 326 of the PC to a charge under section 325 pursuant to section 173(h)(ii) of the CPC, and in not invoking section 167 of the CPC. [42] There are three principal reasons for my finding. [43] First, the prosecution did not at any stage apply to amend the charge to one under section 325 of the PC. The case proceeded throughout on the footing that the respondent had allegedly caused grievous hurt by using a pair of pliers to extract four teeth from PW1. The entire evidential structure of the p examination and cross-examination of witnesses, was directed towards establishin 326 of the PC. [44] While the absence of an application by the prosecution to amend the charge is not in itself determinative, it remains a relevant consideration in assessing whether the circumstances would justify the exercise of the S/N 3tkL0oskWEyxbuXmea3A As recognised in Heng You Nang, it is not the duty of the court to reconstruct the p the prosecution itself had elected to proceed on a particular charge. [45] Second, an amendment of the charge to a charge under section 325 of the PC after the close of the p materially altered the nature of the case faced by the respondent. The defence strategy throughout the trial was directed specifically at rebutting the allegation that the respondent had used pliers to inflict grievous hurt upon PW1. That issue formed the essence of the charge under section 326 of the PC. [46] er a central contested issue in the case. The amendment would inevitably prejudice the respondent, who had conducted her defence on the basis of the original charge framed by the prosecution. This is precisely the form of prejudice cautioned against in James Tan and Sivalingam. [47] Third, the stringent requirements under section 167 of the CPC were plainly not satisfied. It cannot be said that a charge under section 325 of the PC had effectively been tried from the outset or that the defence would necessarily have conducted the case in the same manner had such charge originally been framed. [48] The distinction between sections 325 and 326 of the PC is not contested component of the p S/N 3tkL0oskWEyxbuXmea3A directed towards challenging both the alleged use of pliers and the PW1 s injuries to the respondent. It follows that the issues raised and the manner in which the defence was conducted may well have differed, had a charge under section 325 of the PC been preferred from the beginning. [49] Accordingly, I am satisfied that the SCJ was fully justified in declining to amend the charge from a charge under section 326 of the PC to a charge under section 325 pursuant to section 173(h)(ii) of the CPC, or in declining to invoke section 167 of the CPC. G. Issue 2: Whether this Court May Invoke Section 167 of the CPC, Read With Section 316 of the CPC [50] The appellant further invited this court to invoke the provisions of section 167 of the CPC, read with section 316 of the CPC. [51] On the application of section 316 of the CPC, the appellant relied Sivalingam, where the Federal Court recognised that section 316(b) provides power to a High Court judge, in an appeal against a conviction, to alter a finding of the lower court. on this case to be misconceived, as the present appeal is not an appeal against a conviction. [52] Section 316 of the CPC provides as follows: is no sufficient ground for interfering, dismiss the appeal, or may S/N 3tkL0oskWEyxbuXmea3A

(a) in an appeal from an order of acquittal, reverse the order, and direct that further inquiry be made, or that the accused be re-tried, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction or in an appeal as to sentence

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried; or

(c) in an appeal from any other order, alter or reverse such (emphasis added) [53] From the provision of section 316 of the CPC, it is only in the case of an appeal against a conviction or a sentence that the court may alter the finding of the lower court (see section 316(b)(ii)). [54] The present case involves an appeal against an acquittal, and section 316(a) would apply. The section provides that in an appeal against an order of acquittal, as in this case, the court may: S/N 3tkL0oskWEyxbuXmea3A reverse the order, and direct that further inquiry be made, or that the accused be re-tried, as the case may be, or find him guilty and pass sentence on him according to law; [55] I find that the provisions of section 316 do not grant the power to this court to amend a charge at the appellate stage. The decisions that may be made by the appellate court are expressly set out in the section, namely: a. To reverse the order of the lower court, and direct that further inquiry be made, or that the respondent be re-tried, as the case may be; or b. To find the respondent guilty and pass sentence on him according to law. [56] Accordingly, I am unable to this court may amend the charge under section 326 of the PC to a charge under section 325 at this juncture, and order the respondent to enter her defence on the amended charge. H. Decision [57] For the reasons set out above, the court finds no error in the decision of the SCJ, which warrants appellate intervention. Accordingly, the appeal is dismissed, and the order acquitting and discharging the respondent on the charge under section 326 of the PC is affirmed. S/N 3tkL0oskWEyxbuXmea3A [58] As a final point, the court notes that the evidence disclosed significant injuries sustained by PW1 and troubling circumstances which PW1 was forced to endure at the hands of the respondent. However, the established the particular charge framed, and whether the statutory requirements for the amendment or substitution of that charge were satisfied. Dated 14 May 2026 ADLIN ABDUL MAJID Judge High Court of Malaya Shah Alam Counsel: Appellant : Fatin Hosna Mohamad Zikri Deputy Public Prosecutor Selangor Respondent : N Sivananthan (together with Sharifah Annafiza Al-Shahab Syed Fadzil) Messrs. Sivananthan S/N 3tkL0oskWEyxbuXmea3A