Sutherland J:

When this appeal came on for hearing Miss. Lim appeared for the appellant and Mr. JP Kirby, DPP for the respondent.

The charge against the accused was:

That you on 10 November 1956 at about 1.30 a.m. at Batu Lane, Kuala Lumpur were found loitering in a public place with intent to commit a seizable and nonbailable offence and that you have thereby committed an offence punishable under s. 28 (k) Minor Offences Ordinance, 1955.

At the outset Mr. Kirby stated that he could only support the conviction if the words "suspected person or reputed thief" in s. 28(k) of the Ordinance operated as a defence, instead of being an ingredient of the offence. He continued that it does seem from the cases that it is essential to prove that the accused is a suspected person or reputed thief as part of the evidence, and that this forms part of the offence. He cited Fairbairn's 33 Cr App R 179 case, in which in order to prove that the appellant came within the category of a suspected person evidence of a previous conviction of the appellant was properly admitted. He also cited Harris ' case, which appeared to indicate that evidence is necessary to prove that an accused is a "suspected person" and it should be part of the charge.

Miss Lim, for the appellant, stated that it is essential to use the language of the section so that the accused has notice of the charge he has to meet. The accused should have known that he was being charged as a suspected person so that he could defend himself. In the cases cited, the charges must have alleged that the accused was a "suspected person". She referred to s. 152 Of the Criminal Procedure Code She also referred to 1953 MLJ p. xxxvi where it is stated that PP v. Leong Yoon Meow [1953] MLJ xxxv-xxxvi is authority for the proposition that it is a very good working rule to hold that where that an accused person is alleged to have done cannot be described in the language of any statutory provision creating an offence or where it seems necessary to depart from the language of the section in framing a charge, then the probability is that no offence has been committed. She also referred to PP v. Syed Bakri [1955] MLJ xvii where the learned Judge said:

I have repeatedly emphasised that in framing charges prosecution officers should adhere as closely possible to the wording of the statute constituting the offence which is charged and that Magistrates should be at pains to see that this is done. If it is done, the prosecution know what they have to prove and the accused person knows what is charged against him. If it is not done then there is the danger of a muddle of the sort that has come to light in this case.

The charge in the present case should have read "that you, being a suspected person, etc.

The accused was convicted by the learned Magistrate who has written wellarranged grounds of decision.

There are, however, unsatisfactory features apparent on the record. The charge is defective in that it has not been accurately framed. It does not state so much of the definition of the offence as to give the accused notice of the matter with which he is charged. The cases which have been cited show that it is a safe and prudent general rule that the charge should follow the wording of the section of the law under which it is brought. Unless this is done, the case will very often take a wrong turn and a misdirection will result.

There were also other questionable aspects of the case, but as the defect already mentioned was fatal to the conviction, the other aspects of the appeal were not argued before me and I shall withhold comment on them.

In the result I allowed the appeal, reversed the finding and sentence against the appellant and acquitted and discharged him.

Appeal allowed.