(delivering the judgment of the court): On 9 February 1988, the applicant was granted leave by this court to refer two questions of law of public interest under section 66 of the Courts of Judicature Act 1964. They are:

(a) Where in the course of trial a charge is amended, is it mandatory to read and explain the amended charge to an accused person pursuant to the provision of section 158(ii) of the Criminal Procedure Code.

(b) If the answer to question (a) is in the affirmative, then is the omission to read and explain the amended charge to an accused person a mere irregularity which can be cured by recourse to section 422 of the Criminal Procedure Code.

We heard the application and the arguments by counsel on 7 March 1988 and will now give our decision.

The applicant was originally charged and tried in the Sessions Court, Kuala Lumpur, for cheating under section 420 of the Penal Code, viz. by dishonestly inducing one Wong Won Chong to deliver to the applicant cash of $40,000 (later amended to $37,000) for the purchase of a stolen Mercedes Benz 300D motor car BBD 7375. He was found guilty of the charge, convicted and sentenced by the President of the Sessions Court to eighteen months' imprisonment. He appealed to the High Court against the conviction and sentence. The appeal was, however, dismissed and the conviction and sentence were confirmed.

In the course of the trial in the Sessions Court, the charge was amended on two occasions. The first amendment related to the particulars of the amount involved, i.e. from cash of $40,000 to $37,000 and was made at the close of the prosecution case. The amended charge was read over to the applicant, but was not explained to him. The second amendment was made after the close of the defence and submissions by the defence counsel and the prosecution. The charge was amended to include the words "cash cheque No. 271784 for a sum of $37,000". The amended charge was neither read nor explained to the applicant. Thereafter he was found guilty and convicted.

It was submitted that non-compliance with the provision of section 158(ii) of the Criminal Procedure Code is an irregularity which is not curable under section 422 of the Code.

Section 158 states:

"(i) Any court may alter or add to any charge at any time before judgment is pronounced or in the case of trials by jury or trials with the aid of assessors before the verdict of the jury is returned or the opinions of the assessors are expressed.

(ii) Every such alteration or addition shall be read and explained to the accused."

Section 422 of the Code says:

"Subject to the provisions contained in this Chapter no finding, sentence or order passed or made by a court of competent jurisdiction shall be reversed or altered on account —

of any error, omission or irregularity in the complaint, summons, warrant, charge, judgment or other proceedings before or during trial, or in any inquiry or other proceeding under this Code; or

…

unless such error, omission, improper admission or rejection of evidence, irregularity, want or misdirection has occasioned a failure of justice."

The question that arises is whether section 158(ii) is mandatory or directory. In our view, the word "shall" appearing therein, though generally taken as mandatory, does not mean to be so in every case. No hard and fast rule can be laid down because it depends on the facts and circumstances of a particular case, the purpose and object for which such provision is made, the intention of the legislature in making the provision and the serious inconvenience or injustice which may result in treating the provision one way or the other (see Interpretation of Statutes by Bindra, 7th Ed., p. 662). We are of the view that the safest way is to look into the subject-matter of the case, consider the importance of the provision that has been disregarded, the relation of the provision to the object of the Code and decide in that order whether the matter is imperative or only