Amending the Charge: Case Study of Public Prosecutor v Shaik Alaudeen

By Elena Tan, Ernest Wong, Loh Tian Kai and Wong Ee Ming

In the landmark case of Public Prosecutor v. Shaik Alaudeen,1 Justice Choo Han Teck had to grapple with the limits of the High Court’s exercise of its revisionary powers in amending a charge after the accused has been convicted on that charge. The accused, Shaik Alaudeen, had previously pleaded guilty to a charge under s 8(b)(i) of the Misuse of Drugs Actin 2002. Following his release from the Drug Rehabilitation Centre, the accused was again arrested, this time for consuming a specified drug under the First Schedule of the MDA, thus committing an offence under s 8(b)(ii) of the MDA.

The Deputy Public Prosecutor (“DPP”) in this case requested that the court exercise its revisionary powers under s 268 of the old Criminal Procedure Code3 [now s 401 of the Criminal Procedure Code 20104], read with s 256(b) of the old CPC [now 390(b) of the CPC 2010], to amend the 2002 chargeagainst the accused, from one of consuming a controlled drug under s 8(b)(i) of the MDA to one of consuming a specified drug under s 8(b)(ii) of the MDA.

If the amendment were allowed, it would mean that the accused possessed a prior drug related antecedent under s 8(b)(ii), and he would therefore be liable under s 33A of the MDA for the offence of repeat consumption of a specified drug at present, which attracted a heavier sentence – minimum mandatory sentence of 5 years and 3 strokes of the cane.

Evidently, the type of charge which is preferred against accused persons is no mere formality; if an accused person is convicted on a wrongly framed charge, or if offence for which he was originally charged with was altered subsequent to the completion of the sentence, there will be significant implications down the road. This article looks at Shaik Alaudeen and examines the requirements behind amending a charge post-conviction. It will also look at the different pre-requisites that an amended charge post-conviction will be subject to when petitioning for a Criminal Revision, instead of a Criminal Appeal.

In his submissions, the DPP relied on the 1996 case of Garmaz s/o Pakhar v. Public Prosecutor,6 where the Court of Appeal held that the court could exercise its powers under s 256(b) of the old CPC to amend a charge post-conviction, if the proceedings at trial would have taken the same course and the evidence recorded would have been substantially unchanged. The Court of Appeal in Garmaz stressed that the fulfilment of these two requirements would meet the underlying objective of judicial charge amendment – to avoid prejudice against the accused.

However, on the issue of the amendment itself, Choo J found that the DPP had not fulfilled the two requirements, viz that proceedings at trial would have taken the same course and the evidence recorded would have been substantially unchanged. He noted that the mere fact that the actus rea and mens rea for the original and proposed charges were the same did not axiomatically mean that the accused was not prejudiced by the amendment. After all, even if he had pleaded guilty to the original charge, he might not have similarly pleaded guilty to the amended charge.7 This is an eminently reasonable argument, because the courts should assume that the accused has pleaded guilty only to the precise charge which was originally laid before him, rather than “impute” a guilty plea to any subsequent charges which can be construed on the facts. Shaik Alaudeen is thus instructive for the proposition that the Prosecution is not entitled to petition to amend a charge after an accused has pleaded guilty and thereafter claim there would not be in any event any prejudice to the accused.

“If there be any 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 certainly know with what he is charged, and be prepared to answer the charge as best he may.”

Justice Choo further distinguished Garmaz from the present petition on the grounds that the court in Garmaz had been exercising its appellate jurisdiction while the court in Shaik Alaudeen was asked to exercise its revisionary jurisdiction. Shaik Alaudeen held that a different test applied to the courts of first instance exercising their revisionary jurisdiction. In an appellate jurisdiction, the court could only retrospectively evaluate the trial below and confine their inquiry to whether immediate proceedings to amend the charge would have caused prejudice to that trial. This may be wholly reasonable for an appellate court, which is a trier of the law, not the precise facts of the case. However, a revisionary court has a broad discretionary power to correct serious injustice and must therefore had to consider the entire context of the case, including any possible prejudice to the accused beyond the trial itself.

The prosecution, in accordance with regular revisionary proceedings,8 therefore had to show that not amending the charge post-conviction would result in some palpable wrong or injustice to themselves. But that alone would not suffice, as the purported injustice had to be then balanced against the prejudice which would suffered by the accused upon the amendment of the charge post-conviction. On the facts, Choo J was not convinced that the mere erroneous framing of a charge evinced some serious injustice, nor that this error justified subjecting the accused to prejudice.

Shaik Alaudeen is therefore instructive on a further point – that revisionary powers significantly alter the burdens on the prosecution and court when amending charges. The prosecution not only needs to show some serious injustice; but must prove to the court that the correction of the serious injustice warrants potentially prejudicial actions against the accused. One possible justification for these higher standards is the accused persons’ ability to be present and have their case be heard before the court. Where an appeal is lodged against a custodial sentence (as was the case in Garmaz), the accused is bound to appear in the High Court. Thus, there is no question that his defence and evidence will be heard in light of an amended charge. However, where the amended charge is sought by the prosecution by way of a petition for Criminal Revision (as was the case in Shaik Alaudeen), the accused is not necessarily present and would thus have no opportunity to have his defence and evidence heard in light of the amended charge.

The charge is the starting point of every criminal matter before the courts and it is impossible to understate its importance. Altering or wrongly framing the charge may well change the trajectory of a judgment and the fate of the accused. As stated in Professor Tan Yock Lin’s authoritative text, Criminal Procedure9, “If there be any 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 certainly know with what he is charged, and be prepared to answer the charge as best he may.”

Elena Tan, 20, Ernest Wong, Loh Tian Kai and Wong Ee Ming, all 22, are second-year students at the National University of Singapore (Law), and one of the Investigation Teams in the Innocence Project.

Public Prosecutor v Shaik Alaudeen s/o Hasan Bashar [2013] SGHC 44 [Shaik Alaudeen]

Misuse of Drugs Act (Cap 185, 2008 Rev Ed)[MDA]

Criminal Procedure Code (Cap 68, 1985 Rev Ed)[old CPC]

Criminal Procedure Code (Cap 68, 2012 Rev Ed)[CPC 2010]

S 256(b) of the old CPC does not expressly confer upon the courts with the discretion to amend charges, but it does confer upon the courts with the right to convict on an amended or substituted charge (in essence achieving the same effect as amending a charge). This is a technical distinction that will be ignored for the present article.

6 Garmaz s/o Pakhar v. Public Prosecutor [1996] 1 SLR(R) 95 [Garmaz]

7 Ibid at [4]

8 Ang Poh Chuan v PP [1995] 3 SLR(R) 929 at [17]

9 Tan Yock Lin, CRIMINAL PROCEDURE (LEXIS NEXIS: SINGAPORE/MALAYSIA, 2013), Volume 2, Chapter XI at [1]