Frequently Asked Questions for Criminal Clients
Forestier, Amédée (1890) Blind Love, Vol. 1, Chatto & Windus, London
(Article Contributed by my learned friend Mr Farhan Read, Properietor, Messrs Read & Co.)
Part 1 - Arrest and Remand
Why was my family member arrested?
The police have the power to arrest a person when they have a reasonable suspicion that the person had committed a seizable offence. Upon arrest, they are obliged to give the reasons for which the arrest is made to the person arrested.
Your family member will also be able to call either you or a lawyer before his statement is recorded by the police. This is a legal requirement which the police have to comply with under the Criminal Procedure Code.
It is usually the case that the Investigating Officer (“IO”) who effected the arrest will inform a nominated family member of the said arrest over the phone.
What should I do when I am informed of an arrest?
When contacted by the IO, be sure to note down:
1. The IO’s name and phone number
2. The Balai (police station) at which your family member is detained
3. The suspected offence for which he is detained
Inform the IO of any medical ailments your family member may be suffering from so that you may arrange to pass to the IO his medication, if any.
It is also advisable to get in touch with a criminal lawyer at this point in time to manage communications with the IO and to be on standby to respond to further developments in the investigations.
Why did they have to arrest him/her?
The purpose for a person being arrested can be manifold, but it is usually done to aid in the investigation into a suspected offence. Just because a person is arrested does not mean that the police suspect them of being the actual offender. Rather, they may have a strong enough suspicion of the persons involvement in the offence.
They may have also effected the arrest because the person is perceived to be uncooperative when initially interviewed by the police.
The investigating officer assigned to investigate the offence in any case has a wide discretion in this matter and it is entirely up to his subjective discretion as to whether to effect an arrest or otherwise.
What happens after arrest?
After the arrest, the police may legally detain a person for up to 24 hours for the purposes of investigation. During this period they may also exercise the discretion to release the person on police bail (colloquially known as “jamin mulut”) to appear as and when required at any police station. The police bail will be in the form of a receipt which lists the conditions your family member will have to comply with.
A person is not required to pay any money or make any deposit towards a police bail.
If the police find that period adequate for further investigation, they may apply to the Magistrates Court for an extension. This is called a Remand application.
How long can my family member be detained under a Magistrate’s Remand Order?
There are two possible periods for which your family member can be remanded. Which is applied for by the police depends upon the offence being investigated.
For less serious offences, the Magistrate may order a remand for up to 7 days in total over the course of two remand applications. The order made at the first remand application may be for up to 4 days whereas for the second remand application, the order may be for up to 3 days.
After the lapse of the Remand period, your family member must either be released by the police with or without police bail. What usually happens is that your family member will be charged with an offence (see below) at the local Court within this period or very soon after the lapse of it if the police are convinced that there is a strong enough case to be made out.
For more serious offences, the Magistrate may order a remand for up to 14 days in total over the course of two remand applications. As above, the Magistrate may order detention of up to 7 days at each remand application.
Can I visit my family member while he or she is under police detention/remand?
You may visit your family member if it is allowed by the Investigating Officer who retains a discretion in the matter. The IO will have to sign a permission slip to authorise that visit for you to bring to the police lockup at which the person detained is kept.
Bringing food, clothing and medication to your family members is generally not allowed, but the person in charge of the lockup may nevertheless make an exception.
What happens during the remand period?
During the remand period, the police will conduct further investigations into the suspected offence. Your family member will be required to answer any questions the IO may have and this will be recorded formally in a police statement which is colloquially known as a 112 statement. In addition, the police may also be conducting identification parades and be carrying out raids on premises which may contain evidence in connection with the offence.
Invariably, the police will have arrived at a preliminary opinion as to whether there is enough evidence to bring charges against your family member or some other person once their investigations are complete.
If the police feel that no offence has been made out, they may release your family member on police bail. This does not mean however that your family member is “off the hook”. It may simply mean that the police have other areas to investigate before forming a conclusive opinion on the matter.
If the police feel that there is enough evidence, they may recommend charges to be brought against your family member. This recommendation is made to the Public Prosecutor who is ultimately responsible for deciding whether charges should be brought.
For uncomplicated cases, the decision to charge may be made even before the expiration of the remand period. For more complicated cases, it is not unusual for charges to be brought in the coming months. In the latter case, your family member may be required to meet with the IO as and when required to give his statement.
Part 2 – Charges and Bail
What are Charges?
Charges are the formal allegations brought by the State against your family member. They will contain the particulars of the allegation which the State will have to prove beyond a reasonable doubt.
It is for the Court to decide whether these allegations are proved or otherwise. These questions will be answered at Trial.
When charges are formally brought to Court, it means that the police and the Public Prosecutor concur that on the evidence at hand, there is a strong enough case to be made out against your family member for the offence in question.
What happens when my family member is to be charged?
The IO will inform you:
1. At which Court the Charges are going to be formally read to your family member;
2. When this is going to take place; and
3. The offence which he or she is to be charged with.
At the appointed time and place, your family member will be brought to Court and the Charges will be read to him or her. The Court will then ask whether they want to claim trial or to plead guilty to the charges. After charges have been formally read, your family member will colloquially be termed as “the Accused” or “OKT” (“Orang Kena Tuduh”).
What happens if they decide to plead guilty?
If the Accused pleads guilty to the charges, the Court will proceed to sentencing. This is because a guilty plea amounts to a total and complete admission to the allegations made by the State.
If the Court is not able to proceed with sentencing immediately, the Court may consider the granting of bail to the Accused prior to that date (see below).
For sentencing, please see the Part 4 below.
What happens if they decide to claim trial?
If the Accused claims trial, the Court will then move to consider the question of bail in a bail hearing. During the course of the hearing, the Court will determine, looking at a number of factors particular to the offence and to the Accused in question, whether the Accused may be allowed to remain at liberty during the course of the trial.
If the Court decides that the Accused may not be released on bail, the Accused will have to be detained until the Trial has concluded.
If the Court decides that the Accused may be released on bail, the Accused may be required to bring Sureties to deposit a certain sum of money into Court. The purpose of this deposit is to ensure that the Accused attends Court without fail when required.
The Court may also impose other terms such as for the Accused to surrender his passport or to stay away from a certain person as part of the bail conditions. The Accused may also be required to periodically check in at a police station on a weekly or monthly basis.
Once the Sureties have made the necessary deposit into Court, the Accused may be released on bail. This means that they can go home and only come to Court when required.
If the Accused fails to keep to his Court dates or to comply with the bail conditions, the deposit posted by the Surety may be forfeit in part or in whole by the Court if the Court is satisfied that the Surety has not exercised all reasonable care in ensuring that the Accused keeps to the conditions of his bail.
Not all offences are bailable. For example, if the Accused is charged with an offence under the Dangerous Drugs Act or any offence involving the sentence of death, the law provides that they may not be released on bail.
Whether or not the Court has allowed the Accused to be released on bail, the Court will set another date for the purpose of Case Management (see applicable section) where a number of important steps will occur leading up to Trial (see applicable section).
Who may stand as Surety?
Anyone may stand as Surety for the Accused provided that they are a Malaysian citizen.
What should I prepare for ahead of the Charges being brought?
It is advisable for the Accused’s family to discuss amongst themselves and identify who should stand as Surety for the Accused and also to prepare a sum of money for the purposes of bail beforehand.
They may also be required to bring the Accused’s passport to Court on the day that charges are brought so as to facilitate the Accused’s release as soon as possible. This is because the Accused will not be released unless and until all bail conditions have been met.
Part 3 – Case Management
What happens after my family member is charged?
After formal charges have been filed, and whether or not they are granted bail by the Court, the Court will fix dates for case management ahead of trial. During case management, the Prosecution and the Criminal Defence lawyer will work out outstanding issues amongst themselves in connection to the trial.
More importantly, documents which the Prosecution intend to produce at trial are disclosed to the defence. The statement given by the Accused to the Police will also be disclosed at this point.
Once these issues are settled, the Court will set a date for trial to begin.
What can be done during the Case Mangement phase?
After the delivery of documents to the Accused’s Defence lawyer, a representation may be made to the Public Prosecutor on a number of matters:
1. For a withdrawal of the charges;
2. For a reduction of the charges;
3. For a negotiated plea agreement which may or may not involve a plea of guilt; and
4. For an agreed sentence in exchange for a plea of guilt.
In addition to the above, there may have been other matters which were not fully investigated by the Police. The Accused, through his Defence lawyer, may also request further investigation be carried out to substantiate his defence. This is colloquially known as an “Alcontara Notice”.
It is incumbent on the Police to investigate both the allegation and the Accused’s defence fairly and professionally. If the Police fail to investigate the Accused’s defence adequately, this may adversely effect the Prosecution’s case.
How long is it before the Trial commences?
This depends on many factors such as the Court in question, its placement in the Court hierarchy, and the locality in which the Court is located. As a general guideline however, matters will proceed to trial between 2 – 6 months after the Accused is charged.
Part 4 – Trial
What happens during the trial?
The Trial can be split into two distinct phases; the Prosecution’s case and the Defence case.
During the Prosecution’s case, the Prosecution will be calling witnesses in support of the allegation it makes in the charge sheet. The Prosecution will conclude its case by making submissions with reference to the applicable law and to the evidence led by its witnesses. The Defence will be given an opportunity to answer these submissions.
The Court will then make a determination at the close of the Prosecution’s case whether the Accused has a case to answer. The essential question for the Court at this point is whether on the strength of the evidence produced by the Prosecution, the Court may convict the Accused if he does not answer the Prosecution’s case with an explanation of his own.
If the Accused is called upon by the Court to answer the Prosecution’s case, the second stage commences i.e. the Defence case. During the Defence case, the Accused must first take the witness box and tell the Court his version of events. The Defence may also elect to call any number of witnesses in support of his version of events. The Defence will then conclude its case by making submissions to the Court and the Prosecution will reply to these submissions in turn.
At this point, the Court must decide whether on the totality of the evidence, the Prosecution have proved a case beyond a reasonable doubt. If the answer is in the negative the Accused is acquitted and immediately released. However, if the answer is in the positive, the Accused will be convicted and sentenced.
A sentencing hearing will commence as soon as conviction is pronounced or in exceptional cases may be deferred to another date.
What happens during sentencing?
If the Accused is convicted, this means that he is found guilty of the offence. While the result is the same as if he had admitted guilt at the very beginning, the consequences of being found guilty after a full enquiry by the Court will result in a heavier sentence.
The Court in sentencing will pass a sentence in accordance with what is prescribed in the given offence having reference to the character and nature of the Accused as well as by taking into consideration factors emergent during the trial which may tend to aggravate or mitigate the seriousness of the offence.
As an example, on a finding of guilt for the use of cannabis, if the Accused is found to be suffering from late stage cancer and is only using cannabis to mitigate the side effects of chemotherapy, the Court may consider a sentence which does not involve prison. However, if on the same offence, the Accused was found to have merely used cannabis recreationally, a heavier sentence may otherwise be imposed.
Must the sentence run immediately?
The carrying out of the sentence may be postponed if there is a pending appeal (see below). This is at the discretion of the Court. A deposit akin to the concept of bail may be ordered by the Court to ensure that the prospective Appellant attends Court when required.
Does a criminal conviction affect employability down the road?
There is no easy answer to this question if one is interested in employment in the private sector. This would depend upon the policies of the company in question and this in turn may also be dependent on the type of offence one is convicted for. Unless the crime is one which involves serious physical violence or financial misfeasance, the short answer is probably no.
Things are much clearer in the government sector however. One cannot be employed by the civil service if one has a criminal conviction. For people currently in employment with the civil service at the time of conviction, they are likely to be removed from their position.
I am not satisfied with the Court’s findings. Can I do anything about it?
Every Criminal Accused enjoys the constitutional right to an appeal. This right may be exercised up to two times with the superior Courts of appellate jurisdiction. Similarly, the Public Prosecutor may also exercise his right of appeal. Therefore, an acquittal or conviction may not be the end of the matter.
An appeal may be lodged by either party within 14 days of the Trial Court’s decision. In limited circumstances, leave may be given to lodge an appeal after the lapse of these 14 days. It is advisable therefore to resolve with your lawyer whether an appeal should be lodged or otherwise should the Trial Court’s decision not be in your favour.
Should I pursue an appeal?
It depends upon a number of factors. One of the principle factors to consider is whether the Trial Court’s reasoning was sound in law, and whether that had appreciably contributed to the result appealed against. Another matter to consider is a practical one; is the sentence one which is otherwise lenient given the circumstances? This is because the appeal court may decide nevertheless to uphold the conviction but increase the sentence.
This is a question best discussed in detail with your legal representative and it is up to you as the Client to decide on which course of action to pursue having been advised on the likely outcome.
Because the hearing on an appeal is essentially just a continuation of the trial, it is generally advisable that the lawyer who conducted the Trial should also be appointed to either conduct the appeal or to advise other Counsel who are to conduct the appeal for reasons of familiarity and continuity.
About the Contributor
Farhan Read is an Advocate & Solicitor of the High Court of Malaya and a Barrister at Law, having served alongside myself as Deputy Public Prosecutor in a few memorable cases, including our first criminal breach of trust trial (nicknamed “the Chocolate Ball” case) and some illegal assembly cases. He is founder and proprietor of Messrs Read & Co. When he is not appearing in the criminal courts or on some high profile cases, he engages in some sublime pursuits, such as his cat, cooking and World of Tanks. Reach him at farhanread [a] gmail.com.
Photo provided by the Contributor