S. Raj Kumar A/L Sinnakaundan v Pendakwa Raya (WA-44-189-11/2025)

This is the Applicant's application to strike out the charges or to direct for a permanent stay of the Charges levelled against the Applicant in the Proceedings bearing number WA-83-4944-06/2025.

The Applicant also seeks for an order that he be discharged and released from the charges in the same proceedings. This is an application to strike out or stay the proceedings under the inherent jurisdiction of this Court.

The Applicant was charged with offences under Section 36 (b) of the Births and Death Registration Act 1957 and Rule 25(1)(b) National Registration Regulations 1990. Pertuduhan 1 Repot Polis PRESINT 7/005470/25 Bahawa kamu pada 13.02.2004 jam lebih kurang 11.25 pagi di Kaunter Jabatan Pendaftaran Negara Taman Maluri dengan sengaja mengemukakan maklumat palsu semasa membuat Permohonan Pendaftaran Kelahiran menggunakan Borang Daftar Kelahiran (JPN LM01) atas nama ABIRAMI S. RAJ KUMAR sehingga terkeluar No. Sijil Kelahiran BG73655. Oleh itu, karnu telah melakukan kesalahan di bawah Seksyen 36(b) Akta Pendaftaran Kelahiran dan Kematian 1957 (Akta 299) dan boleh dihukum di bawah seksyen yang sama. (HUKUMAN: Denda tidak melebihi RM2000.00 atau pemenjaraan selama tempoh 12 bulan atau kedua-duanya) Pertuduhan 2 Repot Polis PRESINT 7/005470/25 Bahawa kamu pada 02.07.2016 jam lebih kurang 09.09 pagi di Kaunter Jabatan Pendaftaran Negara Mini UTC Sentul, Kuala Lumpur dengan sengaja mengemukakan maklumat palsu semasa membuat Permohonan Kad Pengenalan 12 tahun dengan menggunakan Sijil Kelahiran yang mengandungi maklumat palsu atas nama ABIRAMI S. RAJ KUMAR, No. Sijil Kelahiran BG73655. Oleh itu, kamu telah melakukan kesalahan di bawah Peraturan 25(1)(b) Peraturan Peraturan Pendaftaran Negara 1990 (Pindaan 2007) dan boleh dihukum di bawah peraturan yang sama. (HUKUMAN: Penjara selama tempoh tidak melebihi 3 tahun atau denda tidak melebihi RM20000 atau kedua-duanya )

Essentially, the Applicant was charged with the false registration of the birth of Abirami S. Raj Kumar and the false registration of Abirami S. Raj Kumar as a citizen of the Federation of Malaysia.

Section 36(b) of the Births and Deaths of Registration Act 1957 is reproduced below: -

(b) wilfully or knowingly furnishes or permits to be furnished any false information, touching any of the particulars required by the Act to be made known; shall be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Rule 25(1) (b) National Registration Regulations 1990 is reproduced below: -

(b) in giving any particulars referred to in regulation 4 (and whether or not he is a person required to register under regulation 3 or a person applying for replacement identity card under regulation 13 or 14 or a person required to be re-registered under regulation 18), makes any statement or gives any information which is false in material particular, and which he either knows or believes to be false or does not believe to be true;

Rule 3 and Rule 4 of the National Registration Regulations 1990 are as follows: - Rule 3

(a) is required to register under regulation 3; shall- (aa) forward two copies of his photograph to the registration officer or permit the registration officer to take his photograph, as the case may be; (bb) submit to all such steps as may be reasonably necessary-

(i) for the taking of his photograph; and

(i) his full name as appearing in his Certificate of Birth or such other document, and if he is known by different names, each of such names in full;

According to the Applicant the charges made against him were based on facts that occurred, if any, 21 years ago (for the first charge) and 9 years ago (for the $ 2^{n d} $ charge).

He contends that the continuation of the charges against him is unconstitutional as it allegedly infringes Article 5 of the Federal Constitution. He suggests that the lapse of time of 21 years before the charges were made against him breaches his right to a fair trial and to be dealt with in accordance with law. He should therefore be subject to the said charges within a reasonable period of time and not only after 21 years after the events allegedly occurred.

He also contends that he is now put in a disadvantaged position and should not be subject to the said charges as: -

(i) The birth of the said Abirami S Raj Kumar occurred 21 years ago.

(v) The Applicant will be prejudiced and should not be subject to the said charges.

The above were denied by the Public Prosecutor in its affidavit in reply. B. Decision of this Court

After considering the affidavits, submissions and the applicable principles, I find that this application is without any merit and is therefore dismissed. I do not accept that the Applicant has shown that there is an abuse of process justifying the striking out of the charges.

My reasons for the above are contained in the following paragraphs. C. Reasoning for Dismissing the Application

(I) Applicable Legal Principles - Power to Strike Out / Stay Proceedings

Firstly, I agree that a criminal court has a general and inherent power to stay proceedings / strike out the charges in order to protect its process from abuse and to secure fair treatment for those accused of crime.

This power can be seen from the decision of the English Courts in Connelly v. DPP [1964] A.C. 1254, where Lord Reid stated the court had "a residual discretion to prevent anything which savours of abuse of process".

In the same case, Lord Devlin held that the courts have "an inescapable duty to secure fair treatment for those who come or are brought before them".

Similar sentiments were repeated in Mills v. Cooper [1967] 2 Q.B. 459 where Lord Parker C.J. held that "every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and abuse of process of the court". This was agreed to by Lord Justice Diplock in the same case. Also see the judgment of Lord Edmund-Davies in DPP v. Humphreys [1977] A.C.1.

This Court refers to the judgment of Lord Justice Neil, in R. v. Beckford [1996] 1 Cr. App. R. 94 where he stated that "the constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions".

It is also trite that the test applicable to stay proceedings / striking out of charges in a criminal proceeding or to quash the charge can be seen in the most often cited case of R. v. Derby Crown Court, ex p. Brooks, 80 Cr. App. R. 164.

In that case, Lord Roger Ormrod C.J held: "The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either

(a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or

(b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable... The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution".

It is important that I refer to the decision of Lord Justice Rose of the English Court of Appeal in RVS[2006]EWCA Crim 756.

In that case, the Appellant was convicted on count 6 of rape and on counts 7 and 8 of indecent assault on a female. He was sentenced to 7 years' imprisonment for rape and 4 years' imprisonment concurrently on each of the indecent assault. The total sentence was 7 years' imprisonment.

I note the facts of the case as reproduced in the judgment of the English Court of Appeal: - "All the allegations related to conduct which was said to have taken place between the appellant and his two younger sisters during the 1970s at their home near Plymouth, where they all lived with their parents. The elder of the two sisters, P, complained that the appellant had raped and indecently assaulted her between 1973 and 1976 and the appellant was acquitted on the counts on the indictment which related to that. The younger sister, S, was born in March 1968. She complained that the appellant had raped her and had indecently assaulted her, in relation to which count 7 and 8 were specimen counts, in 1978 to 1979, when she was 10 to 11 years old, and he was some 10 or 11 years older. Neither sister complained until 2004."

Therefore, the offence as charged against the Accused was committed 31 years before the complaint was made and before the Accused was charged by the Crown.

One of the issues raised by the Accused/Appellant's counsel during the appeal against the decision of the lower Court was the Judge's refusal to grant stay of the proceedings. Counsel contends that due to the long passage of time from the date of the alleged wrong (31 years), his client would be put at a disadvantageous position, and this will cause the trial to be unfair. The Appellant therefore contends that to allow the trial to proceed under such circumstances would be against the interest of justice.

Counsel for the Appellant / Accused contend: - "The factors which he identifies in his written and oral submissions as being pertinent to the impact of delay on the fairness of the proceedings are that the delay was of 25 years, both parents of the three children had died, the absence of available medical records in relation to the period of abuse, the family had left the home as long ago as 1984, the lack of particularity with regard to the dates of the allegations, which deprived the defendant of the opportunity of advancing a positive alibi and calling witnesses, and one of the four brothers who had lived at home at the time had died in 2004. All of those children, it is said, could have given valuable evidence with regard to the layout of the premises. It is significant that every one of these factors was taken into account by the judge when he gave his ruling refusing to stay the proceedings. In our judgment, there is no ground arguable in relation to that."

Despite the above factors, the English Court of Appeal decided not to allow the appeal. The learned Court of Appeal Judges held that the circumstances of the case do not justify a stay of proceedings and that the trial was correctly pursued by the trial Judge. I reproduce material parts of the judgment of the English Court of Appeal: - "20. In our judgment, the discretionary decision whether or not to grant a stay as an abuse of process, because of delay, is an exercise in judicial assessment dependent on judgment rather than on any conclusion as to fact based on evidence. It is, therefore, potentially misleading to apply to the exercise of that discretion the language of burden and standard of proof, which is more apt to an evidence-based fact-finding process. Accordingly, we doubt whether, today, in the light of intervening authorities in relation to the exercise of judicial discretion, Lord Lane would have expressed himself as he did with regard to the burden and standard of proof. Seen in this light, the observations of Clarke LJ in EW paragraph 23, as Clarke LJ himself recognised, represent no departure from the general approach of Lord Lane which was followed by Lord Woolf CJ, giving the judgment of this Court, in Attorney General's Reference No 2 of 2001, [2001] EWCA Crim 1568, paragraphs 16 and following, by this Court differently constituted in Hooper, and by Lord Woolf CJ again in B [2003] EWCA Crim 319, paragraphs 15 to 18, and R v Smolinski [2004] EWCA Crim 1270, paragraph 7. In our judgment the approach indicated by Clarke LJ in paragraph 22, of the judgment in EW is entirely appropriate.

In the light of the authorities, the correct approach for a judge to whom an application for a stay for abuse of process on the ground of delay is made, is to bear in mind the following principles:

(i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;

(v) If, having considered all these factors, a judge's assessment is that a fair trial will be possible, a stay should not be granted."

The term of abuse of process was defined by Lord Lowryy, albeit in a different context, in Hui Chi-Ming v R [1992] 1 AC 34. That case is also concerning an application for stay of the criminal proceedings due to the alleged abuse of process as the co-conspirator of the same offence was not charged for murder but instead prosecuted for manslaughter. Counsel for the Accused contend for the Accused to face a substantially higher charge is unfair and renders the whole process unjust, justifying the right to have the proceedings stayed.

Lord Lowry defined abuse of process as "something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding". His Lordship earlier had explained under what circumstances should this residual power to interfere should be exercised: - "The appellant supported his submission with a citation from the speech of Lord Salmon in DPP v. Humphreys [1977] A.C.1, 46C:- "I respectfully agree with my noble and learned friend, Viscount Dilhorne, that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred." The doctrine of abuse of process and the remedy of refusal to allow a trial to proceed are well established. As Lord Reid said in Connelly v. DPP [1964] A.C. 1254, 1296, there must always be a residual discretion to prevent anything which savours of abuse of process. The main modern authorities are Connelly and Humphreys and their Lordships refer to those cases for statements of principle. In Connelly at p. 1300 Lord Morris of Borth-y-Gest said this:- "I consider that if a charge is preferred which is contained in a perfectly valid indictment which is drawn so as to accord with what the court has stated to be correct practice and which is presented to a court clothed with jurisdiction to deal with it and if there is no plea in bar which can be upheld the court cannot direct that the prosecution must not proceed. I agree with what was said by Lord Goddard C.J. in Reg. v. Chairman, County of London Quarter Sessions, Ex parte Downes, [1954] 1 Q.B. 1 that once an indictment is before the court the accused must be arraigned and tried thereon unless (on a motion to quash or demurrer pleaded) the indictment is held to be defective in substance or form and is not amended, or unless matter in bar is pleaded and the plea is tried or confirmed in favour of the accused or unless (after the indictment is found) the Attorney-General enters a nolle prosequi or unless the court has no jurisdiction to try the offence disclosed by the indictment. In that case Lord Goddard said that he knew of no power in the court to quash an indictment because it is anticipated that the evidence would not support the charge: indeed, the only ground on which the court can examine the depositions, before arraignment, is to see whether (in a case where there is a count for which there has not been a committal) the depositions disclose the offence covered by that count. There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of Its process. The preferment in this case of the second indictment could not, however, in my view, be characterised as an abuse of the process in the court." In Humphreys Viscount Dilhorne said at p.24B:- "Where an indictment has been properly preferred in accordance with the provisions of that Act [Administration of Justice (Miscellaneous Provisions) Act 1933], has a judge power to quash it and decline to allow the trial to proceed merely because he thinks that a prosecution of the accused for that offence should not have been instituted? I think there is no such general power and that to recognise the existence of such a degree of omnipotence is, as my noble and learned friend Lord Edmund-Davies has said, unacceptable in any country acknowledging the rule of law. But saying this does not mean that there is not a general power to control the procedure of a court so as to avoid unfairness." and at p.25G:- "It does not appear to me to have been necessary in Connelly v. Director of Public Prosecutions to decide whether a judge had power to stop any prosecution in limine, and while I recognise that some of the speeches contained observations of a very general and far-reaching character, I cannot see any reason for thinking that any members of the House would have held that a judge could, in his discretion, prevent the trial of a person for perjury after the alleged perjury had secured his acquittal on the ground that in the judge's view as a matter of policy the prosecution should not have been brought, was unfair, oppressive and an abuse of process. In this connection I regard the observations of Lord Morris of Borth-y-Gest as very pertinent." Also in Humphreys Lord Edmund-Davies said at p.52G: "It is clear that autrefois acquit was not available to Humphreys. But it by no means follows that cases falling outside the rules governing the two special pleas in bar must proceed even though they appear as oppressive as any which happen to fall within those rules. Notwithstanding certain of my observations in delivering the judgment of the Court of Criminal Appeal in Connelly v. Director of Public Prosecutions at pp. 1276-1277, I am now satisfied that, in the words of Lord Parker C.J. in Mills v. Cooper [1967] 2 Q.B. 459, 467: '... every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of process of the court.'

In that case Lord Lowry found for an abuse of process to be established it must be shown that the circumstances were so unfair that to allow the proceedings to proceed would be wrong. This is usually equated with actions that shows signs of deceit or fraud. The constitutional power reposed with the Prosecutor must always be respected unless it is shown that it is an exceptional case that to allow the prosecution to proceed it will be an affront to the administration of justice.

I reproduce part of his judgment as follows: - "Having reviewed the facts, their Lordships find no aspect of the case which can credibly be described as an abuse of process, that is, something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding. There can be no suggestion that the appellant was the victim of a plea bargaining situation since he did not plead guilty to the lesser offence. There was no sign of fraud or deceit and, as between the Crown and the appellant, the charge was fair."

I further refer to the case of R v Martin [1998] 2 WLR 1. A case concerning of whether a 19-year-old civilian, who was the son of a serving soldier, should be sent back to Germany after returning to the UK for almost a year, to face trial by Court martial for an alleged murder committed in that jurisdiction. The contention by Counsel for the Accused is that he should not be repatriated there as he should be tried before the ordinary Courts in England. One of the grounds raised by the defence was that the Court Martial proceedings is an abuse of process.

I find that the judgment of Lord Clyde exemplifies what is required before such a plea will be successful before a Court of law. The following was held by Lord Clyde: - "The appellant's case is that there has been an abuse of process. What may be embraced by the expression can only be defined in general terms. The multiplicity of particular circumstances which may require to be included makes it difficult to formulate any exact or comprehensive catalogue. For the purposes of the present case I would adopt the general description formulated by Lord Lowry in Hui Chi-Ming v. The Queen [1992] 1 AC 34, 57: "something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding." An abuse may occur through the actings of the prosecution, as by misusing or manipulating the process of the court. But it may also occur independently of any acts or omissions of the prosecution in the conduct of the trial itself. Indeed the very holding of the trial may constitute an abuse. The taking of a prosecution in breach of a promise not to prosecute was held in Reg. v. Croydon Justices, Ex parte Dean [1993] Q.B. 769 to constitute an abuse of process. Another example is Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 AC 42. In that case there was no reason to suppose that the eventual conduct of the trial would be other than fair in itself but the breach of extradition procedures whereby the accused had come to be within the jurisdiction of the court was such as to amount to a gross abuse of power. In that case Lord Griffiths observed: "In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law." My Lords, I find in those words useful guidance towards defining the standard which requires to be met under the present state of the law in determining whether circumstances occurring outwith the conduct of a criminal trial may qualify as an abuse of process so as to vitiate all that may have followed. No single formulation will readily cover all cases, but there must be something so gravely wrong as to make it unconscionable that a trial should go forward, such as some fundamental disregard for basic human rights or some gross neglect of the elementary principles of fairness. The certified question in the present appeal is "whether proceedings by way of a court-martial regularly constituted and conducted according to provisions of the Army Act 1955 may nevertheless be stigmatised as an abuse of process." The question is to be understood as referring only to proceedings taken against civilians. In the generality of the matter, accepting that qualification, I would return an affirmative answer. But the possibility which is raised in the question and in the answer is one which requires for its realisation the establishment of the kind of fundamental injustice which I have just sought to describe.

Also refer to the judgment of Lord Justice Neill. in R. v. Beckford (1996) 1 Cr. App. R. 94 where he stated that: "The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities: a) Cases where the court concludes that the defendant cannot receive a fair trial; b) Cases where the court concludes that it would be unfair for the defendant to be tried."

Therefore, one could see that the criminal proceedings should only only be stayed or struck out or quashed in "exceptional circumstances". Also see DPP v. Humphrys [1977] 1 A.C., Attorney General's Reference No.1 of 1990, 95 Cr. App. R. 302 and R. v. Haringey Justices, ex p. DPP [1996] 1 All E.R.

I find that the power to strike out or quash the charge summarily ".. is a power that should only be exercised sparingly and only if there is no alternative course" The same position can be seen from the following Commonwealth decisions: -

(i) High Court of Australia in Jago v. District Court of NSW (1989) 87 Australian Law Reports 577 (High Court of Australia).

The same position can be seen in the decision of our Courts in Karpal Singh & Anor v PP [1991] 2 MLJ 544, where the Supreme Court held that the power to quash any charges or stay the proceedings or strike out the charge should be exercised "in rare instances where it is right to do justice to the accused". Our Court must always bear in mind that the inherent power reposed on the Attorney General to pursue a charge against an Accused and that the Court does not have the vested power to interfere with the said discretion.

I also find that the Applicant's Counsel contention that all matters before the criminal courts must be dealt with expediently and her reliance on PP v Choo Chuan Wang [1993] 3 CLJ 329 is misplaced. Although, in principle Edgar Joseph Jnr J agreed that an Accused should be subject to a fair trial within a reasonable time, the practicalities and realities of our Courts must be considered. I refer the following excerpt from the judgment of Edgar Joseph Jnr J which was conveniently not referred to by Counsel in their submissions: - "In the circumstances, had I upheld the objection of Counsel it would, in effect, mean a large number of accused persons charged with capital offences (mostly for drug trafficking) could never be put on trial and so would have to be set free. Surely, that cannot be in the public interest."

I must also take heed what was said by Raus Sharif PCA in Ahmad Zubair v PP [2014] 6 MLJ 831 sitting at the Federal Court: - "[26] Although we accept the forgoing principles stated above as the correct statement of the law, we must caution ourselves that the inherent powers of the court must be exercised in exceptional circumstances to prevent undue oppression and abuse of the process of the court. It should also be noted that the inherent jurisdiction of the court springs not from legislation but from the nature and constitution of the court as a dispenser of justice! (see: Dato' See Teow Chuan & Ors v. Ooi Woon Chee & Ors And Another Appeal [2013] 4 CLJ 901; [2013] 4 MLJ 35). As such we may hasten to add that the inherent jurisdiction of the court is therefore not as wide as it seems to be. Much depends on the facts and circumstances and clearly the court cannot exercise its inherent jurisdiction in respect of any matter covered by specific provisions of the law or if its exercise would infringe any specific provisions of the law. In this aspect it is apposite that we refer to the decision of the Supreme Court of India in the case of Arun Shankar Shukla v. State of UP [1999] Cr LJ 3964. The Supreme Court in addressing the inherent powers of the High Court which is statutorily envisaged under s. 482 of the Indian Criminal Procedure Code observed that: It is true that under s. 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. But the expression "abuse of the process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abused of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in s. 482 of the Code in cases where there is no express provisions empowering the High Court to achieve the said object. It is well neigh settled that inherent powers is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provisions of the Code."

As such, I opine that the power to strike out / quash or stay criminal proceedings should only be exercised if it is shown that if the Court allows the proceedings to continue, it would be so gravely wrong as to make it unconscionable. This power must only be exercised in rare circumstances.

The Applicant's complaint in this lies with the fact that (i) charges were only made 21 years after the registration of the birth of his alleged daughter or 9 years after her NRIC registration and (ii) that the charges were allegedly defective as it did not state the exact particulars of the offence allegedly committed by the Applicant.

I will first deal with the alleged defects to the charges.

On this issue, I find that to decide that the charges were defective at this stage would be premature. It is trite that the Courts hearing the criminal proceedings has the appropriate power to amend the charge at any time before judgment is pronounced. This is provided for under section 158 of the Criminal Procedure Code. This issue should therefore be raised in the Court below and have it considered as part of the adjudication process and should not be dealt with summarily.

Furthermore, the Attorney General / Public Prosecutor has the right to amend the charge at any time as it deems fit. I agree that there are circumstances that this may not be allowed but I do not believe that this should entertained at an early stage of the case. I must note that the trial of the charges have not proceeded and the Prosecution may at any time decide to amend the charge.

I refer to the decision of the Court of Appeal in Fam Meng Siong & Anor v PP [2012] 7 CLJ 557 where Abu Samah JCA held: - [19] It is within the discretion of the public prosecutor to decide what charges should be preferred in the course of the trial. In Long Samat & Ors v. PP [1974] CLJU 80; [1974] 1 LNS 80 at pp. 156-158, Suffian LP, after citing s. 376 of the CPC said: ... from this it would appear that the Public Prosecutor has a discretion as to what charges should be preferred, subject of course to the power of the court to amend charges in the course of trial. That the law intends to give a wide discretion over criminal prosecutions to the Public Prosecutor appears from other provisions of the Criminal Procedure Code providing that for the prosecution of certain offence his complaint is required (section 130) and yet for other offences his written sanction (section 120). [20] In respect of art. 145(3) of the Constitution, Suffian LP said; In our view this clause from the Supreme law clearly gives to Attorney General very wide discretion over the control and direction of all criminal prosecutions. Not only may he institute and conduct any proceedings for an offence, he may also discontinue criminal proceedings that he instituted, and the courts cannot compel him to institute any criminal proceedings he does not wish to institute or to go on with any criminal proceedings which he decided to discontinue. [21] The discretionary power of the public prosecutor to prefer an alternative charge before the close of the prosecution case is not a transgression of the power of the court to alter or add a charge at any time before judgment under s.158 of the CPC. In our view the appellants were not in any way prejudiced by the introduction of the alternative charge to which they claimed trial. There is no ground before us to conclude that there was a miscarriage of justice."

Also refer to Mohd Taufik Peter Abdullah v PP [2019] 3 CLJ 221 and Azman Arifin v PP [2021] CLJU 1558.

I find that the issue raised by the Applicant as to adequacy of the charges should be dealt with before the Magistrate Court. The Public Prosecutor may still amend the charge at any time before the trial concludes and if it fails to do so, then the Applicant's counsel may suggest that he / Accused be discharged in accordance with Section 173(g) of the Criminal Procedure Code. This can be seen from the decision Chu Chee Peng v PP [1973] CLJU 18 and PP v Zainuddin Sulaiman & Ors [1986] CLJ 232.

Therefore, even if this Court were to accept that the said charges were defective and did not contain the required particulars, then this issue should be raised at the trial Court. At that stage, the learned Deputy Public Prosecutor may choose to amend or proceed. If trial proceeds without amendments and the Court finds that the said charges were defective as alleged, then the trial Judge / Court could dismiss the case. This process requires determination as to the facts presented before the Court below and the charges levelled against the Accused. This cannot be exercised summarily through a striking out or a stay of proceedings application. Please refer to procedures laid down in Lau Chee Kai v PP [2011] CLJ 619.

In any event, I do not find that the Accused / Applicant was prejudiced by the charges as it stands. When I peruse the affidavit in support filed herein, it is apparent that he is aware of the charges made against him. Otherwise, he would not have been able to identify his late aunty who could have provided evidence of the birth of his child and his paternal relationship to the child. If the charges were truly defective, he would not be able to identify the issue pertinent at hand and could not then identify potential witnesses in preparation for his defence.

Concerning the alleged delay of 21 years before the charges were made against him, I opine that the Applicant is not prejudiced and the charges should not be struck our as alleged. To do so will be premature at this stage of the case as this Court is not privy to the evidence that will be presented by the Prosecution to prove its charges. If there was indeed an offence committed, this Court cannot stop the Prosecution from presenting its case to prove that the Applicant is guilty of the said charges. This issue should be left to be determined by the trial Judge and not dealt with summarily.

It is trite law, that the burden of proof at all material times lies with the Prosecution. It is for the Prosecution to prove that the Applicant is guilty of the charges. If the Prosecution could not prove the elements necessary to prove the charge due to the lack of witnesses or documents, that may have gone missing due to the passage of time from the date of the event in question, then the charge will be eventually dismissed. I dare not put the cart before the horse. This should be decided by the trial Judge below based on the evidence that will be presented before him or her by the Prosecution.

Even if the Applicant contends that he could not find any witnesses that could prove the relationship he has with the child / person in question, I find that issue is questionable at best. In this case, it is apparent to this Court that the best evidence available to the Applicant would be DNA evidence. The DNA evidence of the child / person who is still alive will shown her paternal relationship with the Applicant. If the Applicant is the biological father, then the Applicant could obtain DNA evidence to prove this. This evidence will the final and unequivocal. I see no reason why the Applicant could not do so in this case.

The same could be said of the other particulars of the birth of the said child. If indeed the child / person is the biological daughter of the Applicant, sufficient evidence could be obtained to prove the defend. The mother of the child could be produced as well. The Applicant has not shown why this could not be done in the circumstances of this case.

At the end of the day, the decision to charge the Applicant lies with the Public Prosecutor. The Public Prosecutor would have perused all evidence presented before him and decide whether the evidence is sufficient to justify the charges to be imposed against the Applicant. This Court cannot second guess whether there is any evidence to support the charges as that is best left in the hands of the trial court.

I also find that the lack of witnesses due the delay and death of key witnesses are factors that our Courts are able to take into consideration in determining whether the Accused / Applicant is guilty of any alleged offence. Even in RvS (supra) the delay of 31 years and the alleged missing witnesses were not sufficient to persuade the English Court of Appeal that the continuation of the criminal proceedings will prejudice the Accused.

An example of where such consideration does not justify the striking out of the charge can be seen in Kirby J's judgment in R v WS Rose [No 1] 2001 NSWC 818. I find that it is suitable that material part of the judgment be produced to show the reasoning of the learned Judge as follows: - "45 It sometimes happens, especially in the context of delay, that witnesses important to the defence die or are unavailable at the time of the trial, or, as happened in this case, exhibits are lost. Unquestionably that is prejudicial to the accused. That prejudice does not confer an automatic right to a stay, as Gleeson CJ explained in The Queen v McCarthy & Ors (CCA, unreported, 12 August 1994): "Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed. In this connection I refer to what was said in R v Adler (unreported, CCA, 11 June 1992) and R v Goldberg (unreported, CCA, 23 February 1993)." 46 In R v Adler (unreported, NSWCCA, 11 June 1992), Gleeson CJ (with whom other members of the Court agreed) said this: "The fact that a witness who is potentially able to corroborate an accused is, for one reason or another, such as death, disappearance or disability, unavailable at trial, does not normally produce the result that the accused cannot obtain a fair trial ..." 47 The onus is upon the person seeking a stay (Barron v AG (1987) 10 NSWLR 215 at 219, 233). It was described by Hodgson J in R v Littler [2001] NSWCCA 173 (at para 6), as "a heavy onus" because of the nature of the order which is sought. Conclusion 48 I accept that, by reason of the extraordinary delay, the accused has been prejudiced. I further accept that the loss of exhibits, and especially the underwear, robs the accused of the possibility of proving that the semen was that of another man. However, I do not accept that the loss of that opportunity is fundamental, going to the root of the trial, and that it cannot be alleviated by appropriate direction. I have reached this view for a number of reasons. 49 First, the items which were lost were the subject of analysis in 1982. That analysis, so far as it went, assisted the accused. It was not his blood type. It was the blood type of the deceased. Although that finding is not conclusive, it ameliorates, to some degree, the difficulties which have arisen. 50 Secondly, even had the exhibits been retained, there is no certainty that they would have yielded a sufficient sample of semen to enable DNA analysis. That is a possibility, but no more than a possibility. Had the sample been capable of being tested, it may have assisted the Crown case, rather than that of the accused. 51 Thirdly, it will often happen, in an imperfect world, that issues will be left unresolved which, had they been resolved, may or may not have assisted the accused. In The Queen v King [2000] NSWCCA 507, the accused was charged with robbery and aggravated sexual assault. The victim was heavily pregnant at the time. She was attacked at night and blindfolded. When she ultimately raised the alarm, she complained of the robbery, but not the sexual assault. The assault was a matter of acute embarrassment to her. She eventually revealed the assault to her husband and the police the following day. By that stage, the procedures followed routinely by the police in the case of sexual assault were of no use. The means of identifying the DNA of her assailant was lost. 52 The accused denied that he was this woman's assailant. There was, nonetheless, a strong circumstantial case against him. He was convicted. He ultimately complained to the Court of Criminal Appeal that a direction should have been given by the trial Judge concerning the disadvantage to him through the victim's failure to raise the issue of the sexual assault. It deprived him of the ability to demonstrate the presence of another. The appeal (Fitzgerald JA, Whealy and Howie JJ) was dismissed. 53 There could, in that case, be no suggestion that, having been deprived (in that case by the complainant) of the opportunity of demonstrating the presence of another, the accused could not receive a fair trial. The issue on the appeal was whether, to overcome the disadvantage to the accused, through the loss of opportunity to prove the presence of another man, a direction should have been given. 54 There will be cases where that which is lost is so fundamental that it goes to the root of the trial. In R v Reeves (122 ACTR 1), the accused was a partner in an engineering firm. The Crown alleged that he and a consultant, Mr Royale, created false and misleading accounts. Mr Royale committed suicide. The company, in winding up its operations, destroyed a "massive number of records", including the working papers of Mr Royale, his files and correspondence. An application was made for a stay. Gallop J said this: (at 23) "Even if a prima facie inference was available to the Crown in the sense that it could establish an hypothesis consistent with guilt, the destruction of the documents, after the institution of the criminal proceedings against him, has created a situation whereby he is deprived of properly advancing a contesting hypothesis consistent with innocence." 55 His Honour added: (at 23) "Having considered all the circumstances, I have concluded that because of the destruction of documents it is not possible for the applicant to receive a fair trial. That destruction creates a fundamental defect which goes to the root of the trial and I do not believe that there is anything that a trial judge could do in the conduct of the trial that could relieve against its unfair consequences: Barton v R (1980) 32 ALR 449; 147 CLR 73 per Wilson J at 111." 56 In contrast, in R v Irena Hatfield [1999] NSWCCA 340, the accused was charged with the murder of her husband in April 1985. In August 1997 the accused sought a stay. A number of exhibits had been lost which she claimed were important in demonstrating her innocence. The following had been lost since the investigation began: (para 5) "(i) The Brno brand .22 calibre firearm and silencer.

(v) A glass from the room in which the deceased was found and on which were some bloodstains." 57 Further, the Crown case substantially depended upon a Mr Busby. Mr Busby had undergone counselling. The counselling notes had been lost, or destroyed, thereby depriving the accused of a potent means of challenge to his evidence. Yet, notwithstanding these matters, Grove J (first instance) and the Court of Criminal Appeal (Sully, Hulme and Hidden JJ) refused a stay. 58 In all the circumstances, I am not satisfied that I should stay the proceedings. I therefore make the following orders."

I also refer to Adams v Director of Public Prosecution [2016] NSWCCA 253 where the Supreme Court of New South Wales held:- "8. The primary judge referred to the principles governing the granting of stays in Subramaniam v The Queen [2004] HCA 51; 211 ALR 1 at [25]-[28] and TS v R [2014] NSWCCA 174 at [61]-[64]. Her Honour referred to what Gleeson CJ had said in R v McCarthy (unreported NSWCCA, 12 August 1994) that: "Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other dies, or becomes ill, or lose their memory or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way toward solving the problems of delay in the criminal lists in this state. However the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial and that the proceedings need to be stayed" (at [13]).

I must remind myself of what Brennan J said in the High Court of Australia in Jago v District Court (supra):- "An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused's conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him. When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law."

I find the above reasoning is persuasive and adopt the same principles. For the above reasons, I do not find that the Applicant has suffered any prejudice at this stage and that the Prosecution of the charges does not constitute an abuse of process and did not breach the Applicant's rights under Article 5(1) of the Federal Constitution. This is not an exceptional case where the power to strike out the criminal proceedings should be exercised.

Ultimately, the power to stay or strike out proceedings is a remedial measure of last resort, intended to protect the integrity of the judicial process rather than to discipline the Prosecution for investigative delay. While the passage of over two decades is significant, the inherent safeguards of the trial process—most notably the Prosecution's unwavering burden to prove its case beyond reasonable doubt—provide the primary protection against the prejudice alleged.

Any evidentiary lacunae arising from the death of witnesses or the loss of archival records are matters of weight and admissibility for the trial court to resolve. To grant a stay at this stage / striking out would be to pre-emptively determine the quality of evidence before it has been tested, thereby bypassing the very mechanism designed to ensure a fair and transparent adjudication of the charges.

I therefore dismiss the Application and direct the matter to be fixed down for trial before the Magistrate's Court. Dated 29th April, 2026 (DATO' INDERA MOHD ARIEF EMRAN BIN ARIFIN) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR CRIMINAL 2 FEDERAL TERRITORY OF KUALA LUMPUR Parties For and on behalf of the Public Prosecutor - DPP Khalijah binti Mohd Khalid of the Attorney General's Chambers (AGC) For the Applicant - Yu Ying Ying together with Thiruna Jayshan of Daim & Gamany