What would be your answer if someone asks you what is your biggest fear in life? For me, the last thing I want to end up with is getting accused of an offence I never committed and not knowing what are my rights. Today's article is about Malaysia Criminal Trial Procedure. Criminal trials in Malaysia is governed by the Criminal Procedure Code (CPC). The act is very complicated, it involves a lot of technicalities perhaps only a lawyer could understand. What I am writing here is a very brief summary to show the overview process of a criminal trial from the start to the end. Again if you are a learned lawyer, please feel free to correct me if I am wrong. The procedure can be broken down into six different stages as below:
Arrest
Remand
Charge
Pre-trial
Trial
Sentencing
Arrest
Imagine, in a usual weekday while you are rushing to an important meeting, you are being pulled over by a police officer. The best thing to do in such circumstances is to co-operate with them. Provide them with your identification card and license upon request. If they are not satisfied after verifying your identity and refuse to let you go, ask them politely whether you are under arrest and what are they arresting you for. This is important because, under the first schedule of the CPC, the officer will need a warrant of arrest from the court to arrest you for a 'non-seizable' offence. If they are not going to arrest you, they will have to let you go. Touchwood, if things end up ugly and they request to search your body or car, please co-operate, because you got nothing to hide if you are an innocent man. In a usual search procedure, they have to perform the search before you, so if they request to search your car boot, please step out of the car and accompany the officer to the rare of your car to witness the search. Now let's say, after the search, they found something in your car that you claim it does not belong to you, and you are under arrest now because the item they found in your car is classified as forbidden drugs. Do not touch the item under any circumstances in such scenario so at least when the item is produced as evidence in the court later, it will not have your DNA or fingerprint on it. What you need to do now is to immediately call you family or friends to inform them which police station they are taking you to and contact your lawyer if you have one.
Remand
After your arrest, the police need to take you to the nearest police station for investigation soonest possible. As a suspect, they cannot detain you for more than 24 hours. If they cannot complete the investigation within 24 hours, they shall present you before the magistrate and apply for a remand order. If you are arrest under an offence relates to imprisonment for more than 14 years, you can be remand up to 14 days in the police station. On the other hand, if it is an offence relates to imprisonment for less than 14 years, the officer can only remand you up to 7 days. At this point, you are still an innocent man based on the principle 'not guilty until proven' enshrine in the common law, so you can make any complaints if you are ill-treated or denied of proper food, water or clothing. Most importantly, request to be represented by a lawyer, if you do not have one, tell them you want to apply for legal aid under Yayasan Bantuan Guaman Kebangsaan. The police will usually start the investigation by taking down a Section 112 statement, you have the rights to remain silent, and your silent shall not be used against you later in the trial. Things will be slightly different in your case because of the forbidden drugs found in your car, this is because statement 112 can act as a defence in drug trafficking case later on in the trial, this is called the 'Alcontara Notice'. After they have recorded the conversation with you and reduce it to writing in the paper, they have to show it to you and request you to sign on it, you can ask them to amend it if you are not satisfied with the record.
Charge
After the 7/14 days of remand end, the police have to either let you go or charge you for an offence. The charge against you shall contain the particulars as to the time and place of the alleged offence. At this point, you are required to stay in the jail until the end of your trial or you can request for a temporary release upon depositing sufficient securities to the court and undertake to ensure to attend to court on the trial date. We call this the bail process, column 5 of the First Schedule in CPC specific whether an offence is bailable or unbailable. Some examples of an unbailable offence are committing a terrorist act, murder, causing grievous hurt by dangerous weapon and some examples of a bailable offence are causing death by negligent, attempt to commit culpable homicide, and causing miscarriage. However, if you are arrested under an unbailable offence, the court or the police still hold a narrow discretion to release you on bail based on circumstances or you are any person under the age of sixteen years or any woman or any sick or infirm person.
Pre-trial
The pre-trial stage can be further breakdown into i) Pre-trial conference and ii) Case Management.
i) A Pre-trial conference shall commence within 30 days from the date the accused was charged in court or any reasonable time before the commencement of the case management. During the pre-trial conference, your lawyer will discuss with the prosecutor on matters relating to identifying the factual and legal issues, narrowing the issues of contention, discussing the nature of the case including any alibi defence, and discussing any plea bargaining. If you are a person who believes in true justice, you should not compromise no matter how appealing the plea bargain is if you did not do anything wrong against the law. Everything agreed in the pre-trial shall be reduced in writing and signed by yourself, your lawyer and the prosecutor.
ii) Case management shall commence within 60 days from the date of the accused being charged and claim to be tried. Taking into consideration on all the matter decided in the pre-trial, the Judge shall at this stage determined the duration of the trial and give directions on any other matter as will promote a fair and expeditious trial.
Trial
The trial shall commence not later than ninety days from the date of the accused being charged. Under Section 178 of the CPC, When the Court is ready to commence the trial, the accused shall appear or be brought before it and the charge shall be read and explained to him and he shall be asked whether he is guilty of the offence charged or claims to be tried. If the accused pleads guilty the plea shall be recorded, and he may be convicted on it, and if the accused refuses to plead or does not plead, or if he claims to be tried, the Court shall proceed to try the case. During the trial, the prosecutor shall start the case by examining his witness. After the prosecutor has close his case, the court shall decide whether every ingredient of the offence had been proved and if yes then there is a prima facie case. If there is a prima facie case, the court shall then call upon your lawyer to enter for defence. It is now that you are allowed to call your witness to prove your defence.
Sentencing
At the end of the trial, the court shall hand down a guilty or non-guilty verdict, following that, the court will pass a sentence according to the law. If your lawyer thinks the sentence is too harsh, he may submit a plea of mitigation to the court for consideration.
In conclusion, never admit to something you did not commit and always seek for legal advice if you are caught in such a situation. We are the guardian who is wielding the angle's shield if you are innocent!
Comments