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23/10/2018 0 Comments The Inception of Pre-trial Processes: Closing Legal Loopholes or Opening Pandora’s Box? The 2010 Amendments, an attempt to expedite criminal trials. I. INTRODUCTION Pre-trial processes were introduced into the Criminal Procedure Code (Amendment) Act 2010[1] and have since been encapsulated in Chapter XVIIIA of the Criminal Procedures Code[2] (“2010 Amendments”). The 2010 Amendments embody Parliament’s spirit of resolving the backlog of cases and promoting speedy trials in line with the Malaysian Government Transformation Programme.[3] Further, the 2010 Amendments were also spurred by the then Chief Justice Tun Zaki Azmi’s initiative to deliver justice more expeditiously.[4] This article will elucidate the three main components of pre-trial processes – pre-trial conference, case management and plea bargaining, and discuss the advantages and disadvantages of the pre-2010 and post-2010 Amendments through the lens of the Court, defence, prosecution, and victim (“Parties Concerned”). Attempts will be made to ascertain whether these amendments are for the better or the worse. If these amendments do indeed bring disadvantages to the Parties Concerned, the author will determine which pre-trial regime, pre-2010 or post-2010, is the lesser of two evils. II. CATALYSTS AND CONCERNS OVER THE 2010 AMENDMENTS Scholars opine that access to speedy trials is a fundamental right of an accused.[5] Before the 2010 Amendments, Malaysia faced a serious conundrum – the backlog of criminal cases. The then Chief Justice Md Raus Sharif even commented that “before this [the 2010 Amendments],[6] a murder case took about 10 to 15 years to reach the Federal court.”[7] As would be explained later in this article, justice delayed is justice denied. Although plea bargaining and pre-trial conference may be practised before the 2010 Amendments, there is little regulation and judicial oversight over the procedures. Consequently, the accused may be vulnerable to coercion or inducements which may lead to the acceptance of a lopsided plea bargain agreement. What is worse, the advocate of an accused may even compromise on some issues to which the accused did not agree. With the advent of the 2010 Amendments, criminal trials were shown to be conducted more expediently. For instance, the 2010 Amendments have rendered the disposal of the backlog of pre-2010 criminal cases across Malaysian Courts to almost 100%, that is, from 3414 cases to two cases.[8] Nonetheless, the implementation of the 2010 Amendments were not spared from questions and scrutiny. Does having a seemingly more efficient criminal justice system chisel away the rights of the accused and the victims? Does the formalisation of pre-trial processes inadvertently calcify some harms to the Parties Concerned? Even worse, do the 2010 Amendments instead cause more problems to the Parties Concerned as compared to the pre-2010 era? One can describe the Parties Concerned as all the cogs and gears that collectively form a machinery by the name of the criminal justice system. As in all machines, the cogs and gears must function well for the criminal justice system to do good to the society. An analysis of the health of the cogs, gears, and the overall functionality of the criminal justice machinery follows to ascertain whether the 2010 Amendments closed legal loopholes or opened Pandora’s Box. III. PRE-TRIAL CONFERENCE Since the Courts and the victims are usually not heavily involved in pre-trial conferences, the boon and bane of pre-trial conferences will be discussed through the lens of the prosecution and defence. A. Pre-trial Conference Pre-2010 Federal Court Judge Azahar bin Mohamed J noted that the concept of pre-trial procedures and case management are well entrenched in civil litigation. Inversely, these processes were not formally recognised in the context of a criminal trial. Nonetheless, Dr Nur Jaanah binti Abdullah @ Chew Li Hua, in her lecture, noted that pre-trial conferences were conducted informally between the prosecution and the advocate(s) of the accused.[9] Similar to pre-2010 circumstances in Malaysia, States like Bangladesh, India, Japan, Korea, and Pakistan have no provision for pre-trial conferences in their rules of litigation even though such conferences were conducted in those countries.[10] One can deduce that although pre-trial conferences were not explicitly mentioned in the Criminal Procedure Code Act 593 (“CPC”), the Code itself does not disallow its application. Therefore, the conduct of both the prosecution and defence remains lawful. 1. Advantages It remains unclear whether pre-trial conferences were often carried out before 2010. Since there were no formal restrictions other than conscience on the part of the prosecution and defence, pre-trial conferences (if conducted) may be conducted flexibly. Furthermore, both the prosecution and defence may choose to utilise this conference to narrow down issues, clarify the parties’ positions, and address other pressing matters.[11] As a corollary, both the prosecution and defence can save time which may shorten the length of the trial.[12] Having a shorter trial will ease the accused’s anxiety and provide the prosecution more time to pursue more complicated cases.[13] 2. Disadvantages In the absence of formal guidelines pertaining pre-trial conferences, the accused may be placed at a disadvantage. For instance, there is no time limit stipulated for such a conference, which means the prosecution is allowed to drag on the matter for a protracted period, resulting in distress to the accused. Furthermore, there is no set goal for the conference, that is, both the prosecution and the defence may discuss irrelevant matters, which renders the need for the conference illusory. To add salt to injury, there is no provision in the CPC to prevent the accused’s advocate from compromising on matters to which the accused disagree. Worse still, both prosecution and defence may not even meet up before trial! 3. Balancing the Boon and the Bane Although pre-trial conferences (if carried out) before 2010 aspire to speed up trials, this aspiration cannot be achieved in the absence of guidelines. In effect, pre-trial conferences may even be subjected to abuse, as the prosecution would not be prohibited from delaying matters discussed in pre-trial conferences. The accused would be placed at a greater disadvantage because there is no provision mandating him or her to agree to matters discussed in pre-trial conferences. Even if pre-trial conferences were conducted, they were harbingers of misgivings instead of tools to achieve justice. B. Pre-trial Conference Post-2010 Pre-trial conferences are now formally recognised under S.172A of the CPC following the 2010 Amendments. The salient procedural provisions on pre-trial conferences will be juxtaposed with the advantages and disadvantages they bring. 1. Advantages The Court of Appeal case of Kingsley Obi Dike v PP[14] acknowledged that S.172A of the CPC (pre-trial conference) was enacted to speed up the disposal of cases. The provisions of pre-trial conferences reflect this spirit. Pursuant to S.172A(2) of the CPC, pre-trial conferences shall commence within 30 days or any reasonable period before case management from the date the accused was charged. This provision, in effect, prevents the prosecution from dragging on issues which may arise from the case. Furthermore, S.172A(4) of the same Code streamlines relevant matters which the prosecution and defence may discuss to speed up the trials, which are stated as follows:-
For civil cases, a Singaporean scholar noted that the streamlining of relevant issues allows for a more productive pre-trial conference and ultimately saves time in the disposal of cases.[15] With more expedient disposals, be it by trial or by a successful plea bargaining, a Bangladeshi scholar noted that an accused is spared from the anxiety of uncertainty because his or her fate is determined earlier.[16] Furthermore, S.172A(1) of the CPC mandates the presence of the accused’s advocate in pre-trial conferences as the subject of discussion in the conference may involve intricate legal matters.[17] Crucially, S.172A(5) of the CPC mandates all matters agreed upon in pre-trial conferences to be reduced into writing and signed by the accused, the advocate, and the prosecution. S.172B(6) further stipulates that this signed agreement be admissible in evidence.[18] Mandating the accused’s signature implies that the accused must approve the agreement made in pre-trial conferences. The importance of this requirement was emphasised by the Court of Appeal in Naveen Raj Naidu v PP[19] – a derogation of S.172A(5) cannot be cured under S.422 of the CPC. Couching S.172A(5) in mandatory terms disallows the prosecution and the accused’s advocate from compromising on matters to which the accused disagreed. Furthermore, the Kingsley case held that S.402B of the CPC (admission of written statements) should be read together with S.172A and S.172B, which affirms the need for the accused’s approval of matters agreed upon in pre-trial conferences.[20] The need for the accused’s signature is further highlighted in several Court of Appeal decisions.[21] Even with these guidelines, pre-trial conferences remain flexible, because S.172A(3) allows them to be conducted by any means and at any venue as agreed by the prosecution and the accused’s advocate. 2. Disadvantages Although an accused’s signature is mandatory for agreements made in pre-trial conferences,[22] there are no provisions in the CPC which require voluntary signing except for plea bargaining.[23] Although the aforementioned cases interpret signing as a form of consent, the accused’s voluntariness while signing, – the demeanour and conduct of the accused – has not been analysed in depth by the Courts. The absence of the voluntariness (except on plea bargaining) may open doors to coercion, inducement to raise or drop issues, or worse, discard a viable defence. Whilst the contents of this agreement may not lead to an immediate effect like plea bargaining (admission of guilt), poorly framed issues and evidentiary concessions will significantly weaken the defence’s case. Furthermore, pursuant to S.172A (1) of the CPC, pre-trial conferences require the presence of the accused’s advocate. However, many accused persons come from poor socio-economic backgrounds,[24] and thus cannot afford advocates. With the funds of the National Legal Aid Foundation (YBGK) drying up,[25] access to advocates for this group of accused persons is scarce. Therefore, more impoverished accused persons cannot have pre-trial conferences and are deprived from having speedier trials. This dismal situation reflects the words of Oliver Goldsmith, an Irish poet, “Law grinds the poor, and rich men rule the law!”[26] 3. Balancing the Boon and the Bane The 2010 Amendments provided much-needed guidelines in conducting pre-trial conferences. These provisions reduce the avenues for abuse by the prosecution and speed up trials for the benefit of the accused. While the omission of the word “voluntariness” and the inconsideration of the socio-economic background of an accused in S.172A of the CPC may prejudice the defence in analysing the matrix of pre-trial conferences as a whole, S.172A overwhelmingly benefits the prosecution and the defence. IV. CASE MANAGEMENT It is axiomatic that case management is a process where advocates from both sides (prosecution and defence) and the judge meet to discuss the handling of the case.[27] The Malaysian Bar opined that effective case management achieves the dual objectives of fair and efficient disposal of legal proceedings, consequently avoiding unnecessary delays and wastage of the courts’ time and resources.[28] A. Languishing Without Case Management As stated above, case management was unheard of in criminal trials before 2010. The only plausible slight advantage arising from the lack of case management is that judges would be less stressed as they would neither be burdened to manage the pace of trials nor be subjected to deadlines. 1. Courts With delays, the public viewed court proceedings in a negative light because they were perceived as inefficient, tedious and expensive.[29] This perception leaves a negative connotation on the judiciary – that access to justice via courts was a hurdle rather than an enforceable right.[30] 2. Defence Before 2010, parties often had to wait up to four or five years for a trial date,[31] whereas some cases require 15 years of waiting.[32] Delay results in distress[33] for the accused. An accused person who is financially incapable of securing a bail often has to suffer the anguish of being confined, more so when most of such cases would end up in acquittals.[34] Pressingly, such delay may violate the accused’s constitutional rights. Justice Edgar Joseph Junior noted in Choo Chuan Wang[35] that a delayed trial may contravene Article 5 of the Federal Constitution as it deprives the accused of his or her personal liberty. The Indian Court in Madheswardhari Singh and another v State of Bihar[36] in interpreting Article 21 of the Indian Constitution[37] (which is in pari materia with Article 5 of the Malaysian Federal Constitution) held that a speedy trial is engrained under Article 21 and is crucial in guaranteeing a person’s right to life and liberty. For those convicted, delayed trials will also postpone access to proper rehabilitation programmes[38] available in correction centres, such as prisons, Henry Gurney Schools, and community service. It is manifestly clear that delay defeats justice. 3. Prosecution The Indian Supreme Court held that a delayed trial may cast doubt on the prosecution’s witnesses,[39] because their memories may be impaired if they were to testify on a crime that happened many years ago. An attorney in the United States lamented that loss of evidence or death of elderly key witnesses would be more plausible in a delayed trial.[40] All these evidentiary problems will dismantle the prosecution’s case. 4. Victim Delayed trials prolong trauma and deny closure for the victims,[41] which further victimises them.[42] Consequently, victims may feel extremely annoyed and would be less likely to report crimes in the future[43] due to their distrust in the criminal justice system. B. The Cusp of Change: Case Management As would be argued below, the most impactful amendments on case management are those that would statutorily speed up trials by setting shorter timelines for all parties. 1. Advantages (a) Courts Following S.172B(1) of the CPC, case management must commence within 60 days from the date of charge; while S.172B(4) stipulates that trial must begin within 90 days from the date of charge. Judges can also give directions to promote a fair and expeditious trial under S.172B(2)(vii). Therefore, courts can now be more efficient. (b) Defence Since trial must commence within 90 days, the accused’s constitutional right to a speedy trial is preserved.[44] With speedy trials, the accused can better preserve his or her mental health and gain earlier access to rehabilitation if found guilty. Under S.172B(2)(i) of the CPC, judges must ascertain the voluntariness of an accused if he or she plea bargains. In doing so, judges can “save” the accused from an undesirable plea bargain if he or she is induced or coerced. Under S.172B(2)(ii), judges shall discuss matters which may arise in a pre-trial conference with an unrepresented accused. Additionally, as per S.172B(2)(iii), judges must assist an unrepresented accused in appointing an advocate. Since S.172B(2)(iv) requires judges to fix the commencement date of the trial, the accused is spared from anxiety stemming from uncertainty. By giving directions to promote a fair trial,[45] judges can further protect the accused from procedural abuse. (c) Prosecution Initiating trials promptly can avoid the aforementioned evidentiary problems. Prosecution witnesses are likely to appear more convincing as they are testifying about crimes that are still fresh in their memories.[46] The author submits that having speedier trials allows the prosecution to move on and focus their attention on more complicated cases. (d) Victim Justice Mohan Ram of the Madras High Court extended Article 21 of the Indian Constitution’s right to speedy trials to include victims of crimes.[47] This inclusion is justified because victims can now have faith in the criminal justice system and receive closure. 2. One Disadvantage and Two Anomalies There is one disadvantage to the defence: Per S.172B(5) of the CPC, failure for case management or trial to commence according to schedule shall not (a) render the charge defective or invalid; or (b) become a ground for appeal, review, or revision. If the prosecution drags on some issues or the judge adjourns the trial multiple times, the accused has no grounds to rectify this delay. One can deduce that a contravention to S.172B(1) and (4) will not warrant any sanction. Hence, S.172B(1) and (4) are toothless provisions. The first anomaly can be found in S.172B(2)(iv) where the judge shall ascertain the duration of the trial during case management. However, the duration of the trial depends on whether the prosecution has established a prima facie case and whether the defence needs to be called.[48] Such determination can only be done after commencement of trial and not during case management. The second anomaly lies in S.172B(2)(vi) where evidence can be admitted subject to the consent of the accused and his or her advocate, and the prosecution. Criminal trials provide parties latitude to bring in surprises in evidence throughout the trial.[49] Consequently, not all exhibits can be admitted during case management. Therefore, the admission of evidence during case management under S172B(2)(vi) is an anomaly. 3. Balancing the Boon and Bane The 2010 Amendments solved many dire problems that were present in the pre-2010 era. Case management has overwhelmingly improved the criminal justice system with speedy trials and has introduced more protections for the accused. The minor disadvantage and anomalies do little to detract the overall benefit of case management. V. PLEA BARGAINING Plea bargaining is aptly described in Black’s Law Dictionary as: “The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to Court approval. It usually involves the defendant pleading guilty to a lesser offence or to only one or some of the counts of a multicounty indictment in return for a lighter sentence than that possible for the graver charge.”[50] Under S.172C(2)(c) of the CPC, there are two types of plea bargaining, namely: 1. Charge Bargaining As Article 145(3) of the Federal Constitution empowers the prosecution to institute proceedings, which inter alia includes framing the charge, the accused may agree to plead guilty to a lesser offence.[51] 2. Sentence Bargaining The accused may plead guilty to the offence in exchange for an agreed reduced sentence provided it conforms to S.172D of the CPC.[52] A. Plea Bargaining Pre-2010 It is pertinent to note that Malaysian courts recognised plea bargaining before the 2010 amendments via S.5 of the CPC.[53] However, courts were not involved in this process, and sentencing remains the sole prerogative of the presiding judge. As decided in New Tuck Shen v PP,[54] the court is not bound by the private bargaining between the prosecution and the defence, because the right to impose punishment is “within the absolute province of the court”. 1. To Plead or not to Plead: Pernicious Problems to the Defence There are little-known benefits to informal plea bargaining pre-2010. One can deduce that it may reduce the sentence of the accused, enabling them to move on with life earlier; or reduce the workload of the prosecution and judges. The main problem then is the absence of the voluntariness requirement in the CPC. An accused is often pressured to plead guilty to crimes that they did not commit.[55] In the United States, such pressure may even originate from the accused’s advocate, as they will intimidate their client, exaggerate the strength of the prosecution’s evidence, exaggerate the length of sentences, threaten to discharge their duties, or even tell lies.[56] The Economist, too, noted that in Spain and the United States, the prosecution may abuse plea bargaining by charging the accused with a more serious offence to induce the accused to plead guilty in a plea bargain.[57] Nigerian Courts noted that the accused may plea bargain due to health reasons or concerns over the welfare of family members if the detention period is long.[58] These circumstances collectively evince that accused persons may plea bargain due to personal issues and not his or her guilt. There is no voluntariness in plea bargaining because such pleas are qualified, and the accused may not understand the nature and extent of the punishment provided under the law. One can deduce from Chua Qwee Teck v PP[59] that the courts only determine the voluntariness of plea bargaining after a conviction and an appeal is filed. The accused argued that his plea of guilt was not voluntary because his counsel told him that he would only be fined but upon plea he was sentenced to imprisonment. The Court analysed the accused’s intention when he made his plea and the surrounding circumstances. The Court found contradictions in his statements and noted that the petition was filed seven months after his conviction after seeking independent legal advice. Consequently, the Court held there was no inducement, and even if there had been an inducement to plead guilty, it was self-induced. This case shows that the Malaysian Courts only assess voluntariness from an evidential balance in the paucity of a more systematic procedure for plea bargaining. As consent was neither regulated nor emphasised before conviction, scholars have labelled plea bargaining as a “stigmatizing, misery-producing, and involuntary proceeding”[60] where most trials happen “in the shadow of guilty pleas”.[61] The lack of binding power of the informal plea bargaining creates uncertainty because even when the accused pleads guilty, judges are still at liberty to award maximum punishment. Just like the United States, this situation is exacerbated when courts do not have guidelines on sentencing when a plea bargain is in place.[62] B. Plea Bargaining Post-2010 The 2010 amendments brought impactful changes to the earlier morbid environment by targeting the crux of the criminal justice system – the courts. 1. Salient Features of the Plea Bargaining Procedures Plea bargaining can be discussed as early as the pre-trial conference[63] and case management stage.[64] Under S.172C(2)(b) of the CPC, courts must now ensure that plea bargaining is made voluntarily after the accused understands the nature and extent of the punishment provided by law. Under S.172C(2)(a) and Form 28A of the Second Schedule, an application of plea bargaining shall contain a brief description of the offence and a declaration that the accused understood the nature and extent of punishment provided under the law for the offence. As provided under S.172C(3), upon receiving an application, the court must commence a hearing to determine whether the application was made voluntarily. S.172C(5) alludes that the case will be disposed of when the court is satisfied with the voluntariness of application. In the absence of voluntariness, the court shall dismiss the plea bargaining application and order the case to proceed to a different court under S.172C(6). After achieving a satisfactory disposition, the Court shall invoke S.172D(1) to dispose of the case depending on the nature of the plea and circumstances of the offence. If the plea bargaining was on the charge, the Court shall sentence the accused under the charge that was agreed upon under S.172D(1)(b). If the plea bargaining was on the sentence, the Court shall deal with the accused under S.293 or S.294 under S.172D(1)(c)(i); or act on S.172D(1)(c)(ii) and S.172G to sentence the accused to not more than half of the maximum punishment of imprisonment, subject to a mandatory minimum imprisonment term, if any.[65] Nonetheless, reducing the sentence under S.172D(1)(c)(ii) will cease to apply in some instances.[66] Per S.172E, once the accused has been sentenced, there can be no appeal except to the extent and legality of the sentence. Note that all facts given by the accused for plea bargaining cannot be used for any other purposes.[67] In light of the new amendments, courts no longer rely on New Tuck Shen.[68] Instead, the Court of Appeal case of PP v Manimaran Manickam sets out new principles in plea bargaining in consonance with the amendments, namely:[69]
In this case, the court set aside the accused’s conviction and ordered the case to go for trial as there was nothing in the judge’s notes of evidence on plea bargaining. Despite not being bound by the agreement of the parties,[70] our courts are now more involved in the plea bargaining process. 2. Advantages (a) Courts As aforementioned, Malaysia had a serious concern with the backlog of criminal cases before 2010. The usage of plea bargaining as a tool to avoid unnecessary delay is evident in PP v Ravindran & Ors,[71] where the Court reduced the accused’s sentence to avoid a long protracted trial with 75 witnesses. Accordingly, courts have more time for more complicated cases and they can reduce their expenses. (b) Defence The critical feature of the 2010 Amendments is the emphasis on the accused’s voluntariness in plea bargaining. It bears repeating that an application for plea bargaining is now formalised under Form 28A of the Second Schedule of the CPC. The following are mandatory items to be contained in the aforementioned Form:
After receiving the application, the court will call for a hearing between the prosecution and the accused. At this stage, the court will scrutinise the accused in camera (privately) on whether the application is made voluntarily. It is submitted that this scrutiny is crucial because the court can assess the demeanour, conduct, and understanding of the accused, which reflect any interference (or lack thereof) from other parties.[72] S.172C(4)(a) also provides a further safeguard in situations where the accused is unrepresented because the prosecutors are not allowed to be present at the hearing. As mentioned earlier, the court has the full prerogative to determine whether the application was voluntary. If the Court finds that the application was not voluntary, the application shall be dismissed, and the case shall go to trial in another court. The change of courts is to prevent possible bias from the judge because an application of plea bargain signifies the accused’s guilt. Unlike the pre-2010 plea bargaining, the amendments reduce the chance for the accused to be coerced or induced to plead guilty because courts now emphasise the need for voluntariness. Furthermore, the accused receives a lesser sentence expeditiously without the need to wait for a lengthy trial to end. Scholars opine that a reduced sentence may help the convicted in rehabilitation[73] which ultimately helps that person to be a functioning member of the society.[74] The benefits of a reduced sentence are more pronounced in younger or first-time offenders because they will eventually spend less time in prison. Consequently, they are less likely to conform to bad habits practised by repeat offenders and are more likely to rehabilitate better. (c) Prosecution In conducting a trial, the prosecution may face evidentiary challenges. For example, the impeachment of a potential key witnesses under S.148 of the Evidence Act[75] may lead to the acquittal of a potentially guilty accused. Such evidentiary challenges are more pronounced in cases involving unsworn child witnesses because their evidence must be corroborated per S.133A of the Evidence Act.[76] If a child is the sole witnesses to a crime, it is impossible to corroborate their evidence even if they speak the truth. Consequently, the potentially guilty accused walks free.[77] Likewise, the testimonies of victims of sexual offences need corroboration[78] even though they are usually the only witness to the offence committed. As a higher evidentiary burden is placed on the prosecution, the potentially guilty accused may walk free. As these crimes are traumatic, victims-cum-witnesses may be incoherent and provide indiscernible conversations.[79] Consequently, they may not respond well in cross-examination, leading to a decrease in their credibility. These witnesses may pose evidentiary challenges to the prosecution. It can be deduced that the peculiarities of Malaysian evidence law may pose a high bar for the prosecution to prove certain cases, especially that involving children and victims of sexual offences as witnesses. By having the accused plead guilty, the prosecution can circumvent these evidentiary challenges. Consequently, the likelihood of the prosecution failing to secure a conviction of a potentially guilty accused with plea bargaining is nil. (d) Victims The victims would be spared the emotional anguish in reliving their experience in court and be subjected to vigorous cross-examinations. For instance, in trials involving victims of sexual offences, intimate details of the victims will be coldly dissected and discussed by court officers, much to the victims’ chagrin. One such victim noted that: “The embarrassment… I had to talk about the most intimate things that I hadn't shared with anyone except a police officer, to relive all those moments I had only been brave enough to tell the police officer and never anyone else. You don't have to bring back the memories – they don't go away – but it is difficult to talk about them because of the shame you feel as a victim.”[80] Another victim noted that: “[I] was asked to sign papers that said "Rape Victim" and I thought something has really happened. My clothes were confiscated and I stood naked while the nurses held a ruler to various abrasions on my body and photographed them. The three of us worked to comb the pine needles out of my hair, six hands to fill one paper bag. To calm me down, they said it’s just the flora and fauna, flora and fauna. I had multiple swabs inserted into my vagina and anus, needles for shots, pills, had a Nikon pointed right into my spread legs. I had long, pointed beaks inside me and had my vagina smeared with cold, blue paint to check for abrasions.”[81] Under such traumatic circumstances, victims, especially those who suffered from sexual offences, are often imbued with fear and shame in trials. Since plea bargaining avoids trial and confirms the guilt of the accused, the victims can put their horrors to rest and move on with their lives. 3. Disadvantages (a) Courts Although plea bargaining at face value serves a collective good for the society, one may argue that it shrouds a greater collective evil. The word “shall” in S.172D(1) of the CPC mandates the Court to at least halve the sentence of the accused in many cases. The discretion of court is only confined to deciding whether a satisfactory disposition of the case is made. The leniency in sentencing may defeat deterrence in the criminal justice system. By formalising the plea bargaining process in the 2010 Amendments, recidivists may be undeterred to commit more crimes because they may opt for a lighter sentence or a lesser charge if they plead guilty.[82] However, this problem is slightly remedied by S.173D(3), where inter alia serious offences and offences that have a grave impact on public interest are excluded from the mandatory minimum 50% sentence reduction requirement. (b) Defence Scholars opine that in plea bargaining, the accused essentially waives his or her constitutional and evidentiary rights by opting out of the trial[83] even though such right and the presumption of innocence is sacrosanct. Additionally, as per S.172E of the CPC, the accused cannot appeal against the admission of guilt under plea bargaining unless it pertains the extent and the legality of the sentence. Even if the accused is innocent, he or she cannot assert this innocence after a plea bargain is made. (c) Victim Since the accused’s sentence will at least be halved in most cases, the victim may perceive that the lenient punishment is not proportional to the harm or injury suffered. The victim may also view the whole process as unfair. Besides, victim impact statements under S.172(m)(ii) of the CPC which serves to aggravate the accused’s sentence will not be tendered because there is no trial. 4. Balancing the Boon and the Bane The 2010 Amendments has resolved many problems in the pre-2010 era, especially on the voluntariness of the accused and the certainty of sentencing. These amendments can speed up trials, thus allowing both the accused, victims and the prosecution to move on to other matters. The prosecution’s job in establishing a case can also be eased. However, the 2010 Amendments did calcify the problem of disproportionate punishment in S.172D of the CPC. In light of the many benefits of the 2010 Amendments versus the harms they bring, these amendments are a lesser of two evils as compared to the pre-2010 plea bargaining process. VI. CONCLUSION The primary problems with the pre-2010 CPC are delayed trials and the abuse of the accused’s rights. The former problem leads to distrust in the Malaysian courts, serious (but avoidable) evidentiary problems for the prosecution, deprivation of the accused’s personal liberty while destroying his or her mental health, and extreme frustration on the victims’ end. The latter problem stems from the lack of the accused’s voluntariness in plea bargaining and other agreements. Consequently, an innocent accused may be sentenced, causing Hashim Yeop Sani CJ in PP v H. Chamras Tasaso to lament that: “At the outset let me say this. I would rather live with arrears and backlog of cases, which is I think a lesser evil, than have cases disposed of with such a speed and in such hurried a fashion as would leave in the minds of the ordinary persons a lingering suspicion that something is not right. Justice must not only be done but must manifestly be seen to be done.”[84] As the law is not entirely black or white, the 2010 Amendments sit within the diverse spectrum of ambiguous grey. With these amendments, courts can clear the backlog of cases, thus guaranteeing the accused’s personal liberty and enhancing the trust of the public towards the criminal justice system. As for the accused, some may contend that the formalisation of plea bargaining is abhorrent in principle as it is akin to bargaining justice at the price of the accused’s constitutional and evidentiary rights. However, reality sings a different tune. With voluntary plea bargaining, the case can be disposed of expediently, allowing early access to rehabilitation. A shorter sentence can, too, promote rehabilitation and better mental health. Courts are also willing to aid the accused in ascertaining voluntariness in case management and provide help in appointing advocates if the accused is unrepresented. With guidelines to promote speedy trials, the prosecution can streamline their work. Further, plea bargaining and speedy trials can help the prosecution maneuverer steep evidentiary challenges which may arise in trials. Likewise, the victims can move on with their lives with speedy trials and plea bargaining. With plea bargaining (no trial), the victims’ privacy is preserved, and traumas arising therein can be spared. However, these benefits come at a price – disproportionality of punishment. Although the 2010 Amendments are not free from blemishes, they benefit the Parties Concerned overwhelmingly more as compared to the pre-2010 era. The 2010 Amendments are indeed the lesser of two evils. As such, Pandora’s Box and most legal loopholes in pre-trial processes remain closed. Written by Rachel Ng Li Hui, an alumnus of the Faculty of Law, University of Malaya. Edited by Caysseny Tean Boonsiri. Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with. Footnotes:
[1] Act 1442. [2] Act 593. [3] Abu Daud Abdul Rahim, “Do we have a New Criminal Procedure Code?”, the Malaysian Bar, 14 Jan. 2011, 21 Mar. 2018 <http://www.malaysianbar.org.my/criminal_law/do_we_have_a_new_criminal_procedure_code_.htm>. [4] Right Honourable Tun Ariffin Zakaria, the Malaysian Judiciary Yearbook 2016, (Malaysia: the Malaysian Judiciary, 2016), 149. [5] “Speedy Trial” (1977) 68(4) Journal of Criminal Law and Criminology 543. [6] Emphasis the author's. [7] Embun Majid, “Judicial Reform Initiative has Cleared Criminal, Civil Case Backlog: Chief Justice” the New Straits Times 25 May 2017, 21 Mar. 2018 <https://www.nst.com.my/news/nation/2017/05/242622/judiciary-reform-initiative-has-cleared-criminal-civil-case-backlog-chief>. [8] It is assumed that amongst the prisoners awaiting trial there are many of them who could not secure bail due to financial or other reasons. This can be supported by the figures of the year 2000. In 2000, 29,847 prisoners were released from the prison when they were not found guilty of any offence. See Annual Report Malaysian Prisons 2000, at page 193. [9] Dr Nur Jaanah binti Abdullah @ Chew Li Hua is a lecturer at the Faculty of Law, University of Malaya. [10] Ted C Eze and Eze Amaga G, “Exploring the Benefits of Pre-trial Conference Procedure to Judicial Proceedings in Nigeria”, (2015) 3(4) Global Journal of Politics and Law Research 47. [11] See footnote 47. [12] See footnote 46. [13] Rubine, A, “Speedy Trial Schemes and Criminal Justice Delay” (1972) 57(4) Cornell Law Review 795. [14] [2015] 7 CLJ 1039, CA. [15] Foo Chee Hock, “Civil Case Management in Singapore: of Models, Measures and Justice” 11th ASEAN Law Association General Assembly Conference (Bali, Indonesia, February 2012). [16] Md Alamin, “Introducing Alternative Dispute Resolution in Criminal Litigation: an Overview”, (2015) 3(11) Journal of Research in Humanities and Social Science 75. [17] For instance, plea bargaining and defences. [18] PP v Robert Yee [2015] 1 LNS 1506, CA. [19] [2015] 3 CLJ 1082. [20] See footnote 14. [21] Ikenna Livinus Ibeneme v PP [2017] 1 LNS 510, CA; Kanadass Krishnan v PP [2016] 1 LNS 48. [22] S.172A(5) of the Criminal Procedure Code, Act 593. [23] S.172B(2)(i) of the Criminal Procedure Code, Act 593. [24] Abramsky, S, “Toxic Persons”, Slate, 8 Oct. 2010, 20 Mar. 2018 <http://www.slate.com/articles/news_and_politics/jurisprudence/2010/10/toxic_persons.html>. [25] Ida Lim, “Legal Aid Shrinking due to Delayed Payments, Bar Report Says” Malay Mail Online 18 Mar 2017, 21 Mar 2018 <http://www.themalaymailonline.com/malaysia/article/legal-aid-shrinking-due-to-delayed-payments-malaysian-bar-report-says>. [26] Roger Tan, “a Bargain for Justice” the Star Online 19 Dec 2010, 21 Mar. 2018 <https://www.thestar.com.my/opinion/letters/2010/12/19/a-bargain-for-justice/#sLsOmqVbr12TcC6e.99>. [27] United States, the Judicial Branch of California, Before the Trial, 2018, 21 Mar. 2018 <http://www.courts.ca.gov/1306.htm>. [28] The Malaysian Bar, Effective Case Management: Perspectives from the Bench and the Bar, 23 Sep. 2016, 21 Mar. 2018 <http://www.malaysianbar.org.my/_international_malaysia_law_conference_2016/imlc_2016_%7C_effective_case_management_perspectives_from_the_bench_and_the_bar.html>. [29] Azahar bin Mohamad, “Courts Reform Programmes: the Malaysian Experience” Institute of Advanced Legal Studies, United Kingdom, 1 Dec 2015. [30] See footnote 30 above. [31] See footnote 30 above. [32] See footnote 7 above. [33] See footnote 30 above. [34] See footnote 8 above. [35] [1992] 2 CLJ 1242. [36] 1986 AIR Pat 324. [37] The Constitution of India 1950. [38] Wesley, J, “Shocking and Unforgivable Court Delays Cause More Crimes, Minister Says” the Telegraph 19 Feb. 2013, 21 Mar. 2018 <https://www.telegraph.co.uk/news/politics/9877583/Shocking-and-unforgivable-court-delays-cause-more-crime-minister-says.html>. [39] Harbeer Singh vs Sheeshpal & Ors, Criminal Appeal Nos.1624-1625 of 2013. [40] Whitehouse, K, “Silver Delaying New Trial in Hopes Elderly Witness Dies: Prosecution” New York Post 28 Jul. 2017, 21 Mar. 2018 <https://nypost.com/2017/07/28/silver-delaying-new-trial-in-hopes-elderly-witness-dies-prosecution/>. [41] American Bar Association, Victims Committee of the Criminal Justice Section: the Final Report of the President’s Task Force on Victims of Crimes, the Victim in the Criminal Justice System, 1982, 22 Mar. 2018. [42] Perrin, B, “Victims of Crime Pay the Real Price of Unreasonable Delays”, the Globe and Mail 20 Feb. 2017, 21 Mar. 2018. <https://www.theglobeandmail.com/opinion/victims-of-crime-pay-the-real-price-of-unreasonable-delay/article34077444/>. [43] Shigirari Gona et al., “Delays in Finalising Criminal Trials”, (2014) 3(13) International Journal of Innovative Research & Development 178. [44] Steinberg, M, “Right to Speedy Trial: the Constitutional Right and Its Applicability to the Speedy Trial Act 1974”, (1976) 66(3) Journal of Criminal Law and Criminology 229. [45] S.172B(2)(vii) of the Criminal Procedure Code, Act 593. [46] An Australian scholar noted that if a video recording films the witness when his or her memory is still fresh, he or she will appear more reliable. See Palmer, A, “Child Sexual Abuse Prosecutions and the Presentation of the Child's Story”, (1997) 23 Monash University Law Review 187. [47] “Speedy Trials Fundamental Right of Victim too: Court” the Times of India 17 Oct. 2008, 21 Mar. 2018 <https://timesofindia.indiatimes.com/city/chennai/Speedy-trials-fundamental-right-of-victim-too-Court/articleshow/3606359.cms>. [48] S.173(h)(i) and (ha) of the Criminal Procedure Code, Act 593. [49] Magesan A/L R Ayavoo, a lecturer at the Faculty of Law, University of Malaya. [50] Garner, B. A. (2004). Black's Law Dictionary, 1190. [51] The prosecution can then frame the lesser offence as the charge. [52] Further details regarding sentencing will be discussed at length below. [53] “As regards matters of criminal procedure for which no special provision has been made by this Code or by any other law for the time being in force the law relating to criminal procedure for the time being in force in England shall be applied so far as the same shall not conflict or be inconsistent with this Code and can be made auxiliary thereto.” As plea bargaining is a feature of English law, it was imported into Malaysia as the Malaysian Criminal Procedure Code was silent on plea bargaining before 2010. [54] [1982] 1 MLJ 27; Malaysian Courts followed the traditional approach of R v Turner, where the judge is not allowed to give an indication as to sentence, see [1970] 2 QB 321; PP v Hisla Sulai (M) [2008] 10 CLJ 381. [55] Parron, J, “Pleading for Freedom: The Threat of Guilty Pleas Induced by the Revocation of Bail”, (2017) 20(1) University of Pennsylvania Journal of Constitutional Law 139 at pg. 150 -158 [56] Alchuler, A, “a Nearly Perfect System for Convicting the Innocent”, Public Law and Theory Working Papers, 2017, No. 612, 939. [57] Hanson, R, “the Troubling Spread of Plea Bargaining from America to the World” the Economist 9 Nov. 2017, 21 Mar. 2018 <https://www.economist.com/news/international/21731159-tool-making-justice-swifter-too-often-snares-innocent-troubling-spread>. [58] F.R.N v Dieprieye Alamiesiegha Charge No. FHC/L/328c/05 (Unreported). [59] [1991] 4 CLJ Rep 755. [60] Alchuler, A, “the Changing Plea Bargaining Debate”, (1981) 69(3) California Law Review 705. [61] Tina Wan, “the Unnecessary Evil of Plea Bargaining: an Unconstitutional Conditions Problem and a Not-so-least Restrictive Alternative”, (2007) 17(1) Review of Law and Social Justice 34. [62] The United States does not have sentencing guidelines in plea bargaining, see supra at 57. [63] S.172A(4)(f) of the Criminal Procedure Code, Act 593. [64] S.172B(2)(i) of the Criminal Procedure Code, Act 593. [65] S.172D(2) of the Criminal Procedure Code, Act 593. [66] S.172D(3) disallows the aforementioned sentencing guideline to apply to cases where:
[67] S.172F of the Criminal Procedure Code, Act 593. [68] [1982] 1 MLJ 27. [69] [2011] 8 CLJ 439. [70] PP v Abdul Malik bin Abdullah [2013] 8 MLJ 251. [71] [1993] 1 MLJ 45. [72] S.172C(4) of the Criminal Procedure Code, Act 593. [73] McDowell, P, “Longer Prison Sentences are not the Way to Cut Crime”, the Guardian 16 Jul. 2012, 21 Mar. 2018 <https://www.theguardian.com/commentisfree/2012/jul/16/longer-prison-sentences-civitas>. [74] Gilligan, J, “Punishment Fails. Rehabilitation Works.” The New York Times 19 Dec. 2012, 21 Mar 2018 <https://www.nytimes.com/roomfordebate/2012/12/18/prison-could-be-productive/punishment-fails-rehabilitation-works>. [75] Act 56. [76] Unless they are victims of sexual offences stipulated in the Sexual Offences Against Children Act 2017, 792. [77] PP v Mohammad Terang bin Amit [1999] 1 MLJ 154. [78] Unless they appear unusually convincing as per Dato' Seri Anwar bin Ibrahim v Public Prosecutor and another appeal [2015] 2 MLJ 293; Din v PP [1964] MLJ 300. [79] Golshan, T, “Why the Stanford Assault Case has Become a National Flashpoint”, Vox, 19 Dec. 2016, 21 Mar 2018 <https://www.vox.com/2016/6/7/11866390/brock-turner-stanford-sexual-assault-explained>. [80] Gentleman, A, “Prosecuting Sexual Assault: ‘Raped all over Again’”, the Guardian 13 Apr. 2013, 21 Mar 2018 <https://www.theguardian.com/society/2013/apr/13/rape-sexual-assault-frances-andrade-court>. [81] See footnote 79 above. [82] Douglas, A, “the Plea Bargaining Controversy” (1987) 77(3) Journal of Criminal Law and Criminology 949. [83] Strutin, K, “Truth, Justice, and the American Style Plea Bargain” (2014) 77(3) Albany Law Review 827. [84] [1975] 1 MLJ 95.
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