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COURT OF APPEAL KUALA LUMPUR
CHIN CHOY – Appellant
Versus
PP – Respondent
[FM Criminal Appeal No: 42 Of 1955]
[1] The appellant was charged with two offences of consorting contrary to reg 5(1) of the Emergency Regulations 1948, one offence of being in possession of a revolver contrary to reg 4(1)(a) of the Emergency Regulations 1951 and one offence of being in possession of ammunition contrary to reg 4(1)(b) of the Emergency Regulations 1951. The period which these offences covered was from 1948 to 1955. He was asked to plead to these four charges and eventually pleaded guilty to the two charges which related to consorting; he claimed trial to the two charges under reg 4. He was convicted on his own plea in respect of the charges concerning consorting but was never sentenced, a practice which the Court has pointed out on more than one occasion is contrary to the plain provision of s 183(ii) Criminal Procedure Code. Sub-section (i) of s 165 Criminal Procedure Code reads:
"If in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence.
[2] The matter for decision is whether an offence of consorting contrary to reg 5(1) and an offence of possession contrary to reg 4(1) can be tried together. That offences under regs 4(1) (a) and 4(1) (b) can normally be tried together has been decided in Ja'afar bin Hussain v. Public Prosecutor, [1950] 1 MLJ 154 . But we can find no decision covering the joint trial of consorting and possession. The best test which has been laid down in considering this matter is contained in Amrita Lal Hazra v. Emperor 42 Cal 957 where the following passage occurs at p 983:
4"It is not possible to frame a comprehensive formula of universal application to determine whether two or more acts constitute the same transaction; but circumstances which must bear on the determination of the question in an individual case may be easily indicated: they are proximity of time, unity or proximity of place, continuity of action and community of purpose or design.
[3] As regards time and place, the charges which we are considering range over a period of seven years and over a number of unspecified places in the State of Pahang. As regards continuity of action and community of purpose or design, the only community of purpose which could exist is the purpose of aiding the communist terrorists. It is so that many communist terrorists consort within the meaning of reg 5(1) and carry arms contrary to reg 4(1), but to succeed in a prosecution under reg 4(1) there is no necessity to prove association with communist terrorists. There must be more than a general purpose or design, the purpose or design must be something particular and definite. In our view, the offences do not form part of the same transaction and therefore were wrongly joined.
[4] The next question for determination is whether the trial of the charges together is an irregularity or an illegality. The manner in which to deal with such a question has in our view been clearly laid down in the two cases: Subrahmania Ayyar v. King-Emperor 28 IA 257; 25 Mad 61; 5 CWN 866 and Pulukuri Kotayya v. King-Emperor 74 IA 65. So often does the question of distinction between an irregularity and an illegality arise that we think it as well to quote the following passage from the judgment in Subrahmania Ayyar v. King-Emperor 28 IA 257; 25 Mad 61; 5 CWN 866:
"Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time, and those offences being spread over a longer period than by law could have been joined together in one indictment. The illustration of the section itself sufficiently shows what was meant.
The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a b
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