Zainal Adzam Ghani J:

[1] This is an appeal from the decision of the Magistrate Court, Alor Star convicting the appellant under s. 411 of the Penal Code after he pleaded guilty and sentencing him to six months imprisonment and a fine of RM2,000. The main argument by the learned counsel for the appellant was that the charge against the appellant was defective as it was framed with the phrase "telah dengan curangnya memiliki" ("was dishonestly in possession") when s. 411 which created the offence contained the phrase "dengan curangnya menerima" ("dishonestly receives or retain"). This argument incidentally was not included specifically in the appellant's petition of appeal. The charge against the appellant in the Court below reads as follows:

Bahawa kamu pada 22/06/2006 jam lebih kurang 7.00 petang, di Depan Rumah No. 241, Batu 8 3/4, Simpang Empat, Alor Star, di dalam Daerah Kota Star, di dalam negeri Kedah dengan curang memiliki harta alih iaitu satu guni plastik mengandungi wayar tembaga, bernilai lebih kurang RM 1,220.00, hak milik Telekom Malaysia, di mana kamu tahu atau ada sebab mempercayai bahawa harta itu adalah harta curi, oleh yang demikian itu, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 411 Kanun Keseksaan .

[2] The learned counsel referred to the case of Tay Leong Siak v. PP [2002] MLJ 197 where a similar error in the charge under s. 411 of the Penal Code happened. In his judgment Low Hop Bing J, (as His Lordship was then) stated:

On my part, it is necessary and advisable to hark back to first principles in criminal law and procedure. The charge states that the accused "telah dengan curangnya memiliki" (or English translation reads "was dishonestly in possession of"). In my view, the charge appears to be out of focus because the offence created under the said s. 411 is "dengan curangnya menerima atau menyimpan" (or in English, "dishonestly receives or retain". The said s. 411 makes no mention whatsoever of possession. The words enacted in the said s. 411 creating the offence are crucial and Page 5 significant. It is trite law that the charge in question must be precisely formulated to include the specific accusation against the accused who has the right to know and must have notice of the nature of the charge at the first opportunity, so that the accused is forewarned with clarity and certainty the essential elements or ingredients that the prosecution has to establish against him in order to ensure that he can be forearmed in his defence for the purpose of directing all the evidence exclusively to the specific charge. It is true that s. 156 of the Criminal Procedure Code (FMS Cap. 6) ("CPC") states that no error in stating either the offence or the particulars required to be stated in the charge, and that no omission to state the offence or those particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by such error or omission. S. 156 of the CPC was invoked eg.

(1) in Saw Tuan Cheong v. Public Prosecutor, [1946] 12 MLJ 143, where the accused was not misled;

(2) in Low Seng Wah v. Public Prosecutor, [1962] 28 MLJ 107, where there was no miscarriage of justice;

(3) in Abdul Hamid bin Udin v. Public Prosecutor, [2000] 6 MLJ 334 where the wrong section ies. 12(2) of the Dangerous Drugs Act 1952 was stated in the charge when it should be s. 6 of the same Act, which was held to be curable under s. 422 of the CPC ;

(4) in Lee A Ba v. The Public Prosecutor [No. 36 of 1966] reported in Public Prosecutor v. Oie Hee Koi & Associated Appeals, [1968] 1 MLJ 148, Page 7 JCPC, where error in nomenclature was of no consequence;.

(5) in Zulkiflee bin Mohd Dom v. Public Prosecutor, [1997] 4 MLJ 161, where the omission to set out the particulars of deception practised on the complainant was not material;

(6) in Pie Bin Chin v. Public Prosecutor, [1985] 1 MLJ 235, where the misdescription of the word "Federation" instead of the word "State" in the charg