Section 153(2) of the Criminal Procedure Code does not mandate the amalgamation of charges in cases of criminal breach of trust; it provides an enabling provision.

JUDGMENT

Mohamad Zabidin Mohd Diah JCA:

[1] The Appellant was charged in the Sessions Court in Kuala Lumpur with 12 charges under s 409 of the Penal Code. These charges were registered under Criminal Case No: WA-62r-49-10/2019. The details of the charges are:

(a) Ten (10) charges were preferred against the Appellant for offences under s 409 of the Penal Code on 19 October 2018; and

(b) Further, on 14 December 2018 and 20 February 2019, two (2) additional charges were preferred against the Appellant for the same offences, respectively.

[2] Subsequently, all of the above charges were transferred to the High Court of Malaya in Kuala Lumpur and registered under Criminal Trial No: WA-45-7-02/2019 ("Criminal Trial"). The Criminal Trial was then fixed for trial in Mahkamah Tinggi Jenayah 1, Kompleks Mahkamah Kuala Lumpur commencing 18 November 2019 until 22 November 2019, 2 December 2019 until 6 December 2019 and 9 December 2019 until 12 December 2019.

[3] On 24 September 2019, The Appellant filed an application to amalgamate the 12 charges under s 409 of the Penal Code into 3 charges ("The Application") pursuant to s 153(2) of the Criminal Procedure Code .

[4] On the 5 December 2019, the learned High Court Judge dismissed the Appellant's application. Hence, this appeal before us. We heard the appeal on 23 June 2020. We unanimously found no merit in the Appellant's appeal and we dismissed it.

Grounds Of Appeal

[5] The Appellant's grievances in this appeal basically is against the decision of the learned High Court Judge in not exercising his discretion in favour of the Appellant when his lordship failed to direct the Respondent to consolidate all the twelve (12) charges under s 409 of Penal Code into three (3) pursuant to s 153(2) of Criminal Procedure Code ( CPC ). The Appellant posited 4 grounds of appeal and they were as follows:

(a) That the non-compliance of s 153(2) of the Criminal Procedure Code would cause both unfairness and prejudice to the Appellant, undermining the Appellant's right to a fair trial;

(b) That the complaint of fairness is quite distinct with the issue of clarity of charges, which is not the complaint of the Appellant;

(c) That notwithstanding whether s 153(2) of the Criminal Procedure Code is mandatory or otherwise, the primary duty of a criminal Court is to ensure that the prosecutor act with fairness; and

(d) That the approach taken by the Prosecutor was oppressive and unjustifiable.

[6] The learned counsel for the Appellant submitted inter alia, there were non-compliance of s 153(2) of the CPC which is mandatory in nature. It was the Appellant's case that specific manner of construction of charges in relation to criminal breach of trust offences has been clearly stipulated under s 153 . Therefore such manner should be adhered to and any failure to do so would cause both unfairness and prejudice to the Appellant and undermining the Appellant's right to a fair trial.

[7] It was further submitted by the learned counsel "fairness" is the key characteristic of the criminal justice system, and it includes procedural fairness. A criminal Court has a primary duty to ensure that the prosecutor act with fairness. In this case, the 12 charges should have been constructed into only 3 charges, as allowed by s 153(2) of the CPC . Failure to do so amounting to oppression. Learned counsel referred us to Court of Appeal case Aisyah Mohd Rose & Anor v. PP; [2016] 1 MLJ [2016] 1 MLJ 840 at page 8552, [2016] 1 CLJ 529; PP v. Kok Wah Kuan ; 2008 MarsdenLR 4206 ; [2007] 6 CLJ 341; Md Desa Hashim v. PP ; 1995 MarsdenLR 1901 ; [1995] 4 CLJ 677; [1996] 1 AMR 059 as the authority to support his contention.

Our Deliberation And Decision

[8] Going through the course papers and submission by counsel for the Appellant, it is clear to us that the Appellant's application in the High Court was made under s 153(2) of the CPC . The gist of the Appellant's case was that the non-amalgamation of the 12 charges into 3 charges was against s 15