Laville J:

The first submission by appellant is that his trial on three charges was illegal because it did not comply with the provisions of s. 163 of the Criminal Procedure Code.

The charges were (1) cheating by issuing on 20 February 1949 a cheque in favour of Looi Cheok Hoong knowing that the bank on which it was drawn had no funds available to meet it; (2) criminal breach of the trust in respect of $1250 entrusted to accused on 21 February 1949; (3) criminal breach of trust in respect of $1,000 entrusted to accused on 23 February 1949.

The learned Deputy Public Prosecutor agreed that there had been misjoinder of charges contrary to s. 163 of the Criminal Procedure Code , but argued that it was curable as an irregularity under s. 422 of the Criminal Procedure Code.

Section 163 states that for every distinct offence there must be a separate charge and separate trial except in cases covered by ss. 164 , 165 , 166 and 170 of the Criminal Procedure Code.

Section 164 lays down that three offences covered by the same section of the Penal Code , if committed within one year, may be charges and tried together.In the trial of the case under appeal, a charge under s. 420 was charged and tried together.In the trial of the case under appeal, a charge under s. 420 was charged and tried with two charges under s. 406, Penal Code. This clearly is not covered by s. 164 of the Criminal Procedure Code.

Section 165 lays down that 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, those offences may be charged and tried together.In the case under appeal three separate transactions are charged against the accused.They took place on three separate dates and the transaction of 20 February (First charge) had no connection with the other two transactions of a similar nature which took place on 21 and 23 February.

Section 166 of the Criminal Procedure Code likewise is ruled out as the series of acts charged against the accused are in each case a separate series of acts and though it is possible that each series may constitute several offences yet the offences arises from a separate series of acts.

Section 170, Criminal Procedure Code, does not apply as it deals with the joinder of the offenders rather than of offences.

I hold therefore that there has been a misjoinder of charges in this case under appeal and that the charges could not be tried together.

The question arises as to whether this misjoinder amounts to an irregularity or is an illegality.If the former it may be cured under s. 422, Criminal Procedure Code, but if the latter it vitiates the whole trial.It is clear from the wording of s. 163 that such a misjoinder is an illegality: the words of s. 163, Criminal Procedure Code, are mandatory "... there shall be a separate charge ... and it shall be tried separately ..." It is settled law that s. 422 cannot be used to cure an illegality, vide Subramania Iyer v. King-Emperor 28 IA 257 and Rex V. Sakandar Khan [1939] 1 MLRH 226, [1939] 1 MLJ 123 , and that any conviction on the misjoined charges must be quashed.

The question remains as to whether the Court should order a retrial on each charges as the Court is entitled to do under s. 316(b) of the Criminal Procedure Code.In Seng Sai Kee V. Rex [1940] 1 MLRH 455, [1940] 1 MLJ 246 , Terrell, A-G CJ, did not order a retrial in allowing an appeal on the ground of misjoinder though he stated that the convictions on each charge were on the merits of each case acceptable.

In this case under review the accused was acquitted on the First charge, but convicted of criminal breach of trust on the remaining two charges.To support such a charge there must be evidence of an express or implied entrustment of the property concerned by the complainant to accused.In the case of the money given to accused on 21 February 1949, $1,250 in return for his cheque, there is no acceptable evidence that it was entrusted to