IS THERE A TIME LIMIT FOR CRIMINAL CASES?
Antonio Mesutti (1861) from I Misteri di Roma Contemporenea.
The saying goes, “Justice Delayed is Justice Denied” but “Justice Hurried is Justice Buried”.
Unlike civil cases, there is no time limit for a criminal case to be filed in court. It never expires, even if the crime was committed many years ago.
There are very few exceptions, for example Section 19 of the Trade Descriptions Act 1972 (repealed) provided a time bar of 3 years from the date of commission of the offence, or 1 year from its discovery by the prosecutor, whichever is the earlier. This provision was interesting for several reasons. The said Act was repealed and replaced by the Trade Descriptions Act 2011 which abolished the time bar.
Since there is no time limit for the police to complete a criminal investigation, you can never be sure that a case from long ago will never resurface again.
FIVE EXAMPLES
These are from cases I had handled before or which I interacted with:
The Court accepted identification evidence of the father of a murder victim, five years after the attack. The main witness was the father of the deceased, who identified the “leader” of a group of five men who arrived in a car in front of his house and attacked his son with swords covered with newspaper. But the father memorised the number plate of the attackers’ car and provided it to the police.
Five years later the same attackers’ car (same number plate and same vehicle type and color) was stopped at a roadblock in another state. The driver was also the registered owner and was arrested. An identification parade was held where the father of the deceased successfully identified the driver as the “leader” of the group who threatened his son five years earlier. After one or two adjournments and stern words from His Lordship Dato’ Zamani bin Rahim, the defence counsel convinced his client to plead guilty.
What are the chances that some murderous gangsters with covered swords would be using the same car using the same number plates in broad daylight and not even bother to alter the colour or destroy the car [2], five years after the event. The passage of time does not protect them from facing justice.
The head of a marketing department was charged one year after arrest. Formerly holding the post of Assistant General Manager, she served a renown telecommunications corporation for almost 20 years and won many awards for exceeding sales targets. She was arrested by the Malaysian Anti-Corruption Commission for inducing payouts based on bogus invoices and dummy projects. She was only charged in court a year after arrest. She did not expect or foresee that she would be charged, attending court alone without a lawyer and begged the learned DPP for lenient bail terms.
A man died in a road collision with a lorry. The lorry driver was charged some six years after the accident. My learned friend Encik Hidhir Mustapha handled this matter.
A high school principal was arrested for molesting a Form Two pupil, when he allegedly summoned her to his office for a disciplinary offence. One and a half years later, he was charged under the Sexual Offences Against Children Act 2017. I do not know what took them so long to charge him because there was no medical evidence and probably few witnesses. It’s not like there were boxes of documents to study or bank statements to obtain.
SOMEONE LODGED A POLICE REPORT AGAINST ME MANY YEARS AGO. HOW WILL I HAVE PEACE OF MIND THAT THE CASE WILL NEVER RETURN TO HAUNT ME EVER AGAIN?
This is indeed the “sword of Damocles” dilemma faced by persons under investigation. Even if they are never charged in their lifetime, they must live under constant threat because the sword can fall on their heads at any time, and when it does fall, it falls not at a time of our choosing.
Unlike a complainant who lodged the report, you do not have a right to know the outcome of the investigation. If you write to the police, they can just ignore you forever and ever. The complainant has rights under Section 107A of the Criminal Procedure Code, for example. Internal directives may also require prosecutors to notify complainants. But you, the OYDS or OKT, are seen to be the bad guy so you get zero rights.
Sometimes if you ask for the status, the police can respond if you try. Sometimes they respond, sometimes they do not. I have successfully obtained letters from the police stating that the case has been “NFA” (no further action) against them, meaning that they can have peace of mind that the investigation has been referred to the Deputy Public Prosecutor who has decided not to file charges. But usually they do not commit to an answer.
CAN A CASE THAT HAS BEEN CLOSED (NFA) BE REOPENED SOMEDAY?
Absolutely. As much as an exonerated person would like to sleep well at night and go on with his life, he will never really be in the clear. Even with a written letter saying that the case has been NFA, it can be reopened in the future. There is no law that prohibits the police from doing this. I have in the past been assigned to review a case, purportedly from a specialized unit in Bukit Aman that oversees cold cases. I do not know what a cold case is, but I presume from popular literature that it means cases that were unable to proceed for many years but could not be concluded due to lack of or inaccessibility of evidence. So, one fine day, the missing piece of evidence (for example, arising from new forensic scientific methods, or a whistleblower who conveniently arrived) had emerged, linking you to the crime which you thought you had been cleared of long ago.
HOW DO I KNOW IF I HAVE AN INVESTIGATION ONGOING AGAINST ME?
1. You would be arrested, suddenly.
2. You would be contacted by the police who would record your statement.
3. Some agencies such as the Malaysian Anti-Corruption Agency publish names and faces on their wanted list – accessible on their public website.
Apart from that, you will never actually know that you are under investigation. Legally, it is the offence that is investigated and not a specific individual. Even the concept of “suspect” or “saspek” is not legally constructed nor defined, and this is not a bad thing. Because in reality, sometimes victim and suspect switch roles as the truth unfolds.
It is improper for an individual person to be targeted and then a crime is constructed around him by the investigator. That being said, sometimes new crimes are discovered in the course of investigating that one suspect. I recall an infanticide case for which I was preparing with my colleagues – it began as a rape (father raped daughter). In the course of investigation when the police asked the girl whether her father had beaten her or any of her siblings before, she revealed that he beat her sibling to death with a wooden stick and hid the body in a banana tree field. So the case proceeded as a murder case of this sibling who nobody talked about,a beautiful special child who lived in a box. In that unforgettable case, I received valuable assistance from my colleagues, Puan Umma Devi a/p Loganathan and Dr Tan Guat Cheng. I believe another officer prosecuted the trial to its conclusion because I had left service by the time it took off.
There are various techniques in a criminal investigation depending on the type of offence, the practices of the agency and the experience and planning of the individual investigation team. At an advanced stage of investigations, if the matter has been referred to the Deputy Public Prosecutor, they may even direct that further investigations be carried out, thereby enlarging the scope of the case so that persons who were not witnesses (or suspects) initially can be caught within the crosshairs of the enforcement agency.
Investigators can go on for years on surveillance, even if they suspect you, they may not close in on you until it is too late for you to escape.
WHAT IS THE STRONGEST ASSURANCE THAT A CRIMINAL MATTER IS GONE FOR GOOD?
1. The Constitution and the Court.
Article 7 of the Federal Constitution guarantees us protection from repeated prosecutions on the same matter. This is a codification of the old idea of autrefois acquit. If you have been acquitted by a court after full trial, then the PP cannot charge you again for the same offence. Do not confuse this with retrial or re-charging a case that has been discharged but not acquitted (discharge not amounting to acquittal, DNAA).
2. The Public Prosecutor himself:
a. Under Section 254(3) of the CPC – whereupon the Court exercised its power to order an acquittal instead of DNAA.
b. By issuing a letter stating that your representation is accepted and the charge is withdrawn. So there needs to be a representation first (I have written about this earlier).
c. By signing a plea bargain agreement with you – it is part of a satisfactory disposition of case (I have also written about this too).
Just because the complainant has “withdrawn” their police report does not mean that the case is gone for good. Earlier this month, the charge against my client was withdrawn (with an order of DNAA not A&D) because the victim testified in court that she wished to withdraw her report so that the case did not interfere with her schooling. Her father also was called by the prosecution to testify that they did not wish to “ungkit” (prolong, revisit) the matter. This did not mean that the case will not be re-instituted when the girl had completed her studies or for whatever reason considered fit by the DPP. The decisions of DPPs are generally not reviewable, but when they are, they are subject to some very high thresholds (please see Sundarajoo decided this year by the Federal Court).
It follows that even the death or absence of the victim does not guarantee that the suspect is free from the sword of Damocles. In the big picture this is good so that criminals do not see the additional benefit of finishing off their witnesses. Even witnesses who have returned from asylum decades later can still be charged. There is no escape from the (criminal) law.
HOW AN OLD CASE, RE-OPENED, CAN PREJUDICE YOU (COMPLAINANT / SUSPECT)
When there is delay in the police or prosecution, or even by the complainant, in bringing a case against you, you would face a number of hardships. It is also plain unfair. I would like to borrow some discussions from cases in American civil law on the topic of laches[1].
1. Evidential Prejudice
a. Your defence or your complaint will be impaired because over time, your memory would not recollect important details. Some judges will punish you for that, relying on a particular yet popular interpretation of the Alcontara Notice.
b. Your supporting witnesses would have died, moved or unfriend you.
c. Your evidence would have been destroyed, faded away, or stored data become corrupt.
d. Banking records may no longer be accessible after 7 years. Telecommunication records likewise would be inaccessible. CCTV recordings could be erased after just a few weeks. Just saying that such evidence exists may or may not be accepted by the court in the present day.
e. Real story: The IO or chemist has passed away.
2. Expectational Prejudice
a. The delay in prosecuting a case has caused you to suffer economically and psychologically – social stigma, inability to travel, barriers to conduct business, and others. Such losses are difficult to quantify and it may be difficult for a court to accept and recognize it as such.
b. You have invested so much time and money to develop a product, but the action for certain types of intellectual property infringement (also a criminal offence) was delayed – and all your investment goes to waste. You would have not incurred so much loss had the criminal action been instituted earlier.
Generally, police and prosecutors suffer zero consequences for delayed action, even if the case results in NFA, DNAA or acquittal. This could be because:
1. Complainants do not know their rights and fail to follow up with their reports or to monitor their cases.
2. There are so many factors contributing to the speed of a case’s progression – the departmental workload, the court’s schedule, the availability of witnesses and counsel, obtaining documents from banks and telcos, and others.
3. The training has focused more on quality and not expeditious prosecution. If you observe a typical morning at the Magistrate Court of a large district, you may see how challenging it can be to maintain quality versus numbers. At the Magistrate Court, the casualty rates for cases are much higher than in the High Court. Casualty meaning, cases DNAA or withdrawn or otherwise discontinued, with or without representasi. I do not know how closely these cases are monitored by the State Directors of Prosecution.
4. Except certain agencies like the Securities Commission and maybe the Appellate & Trial Division, few prosecution teams actually monitor their instructions to the investigators strictly. For example, if a direction is “lapor kembali dalam masa 2 bulan tanpa gagal” – unless the individual prosecutor in charge of a file actually keeps that date in their diary and follows up, there is no control mechanism. Investigation Papers sent out, if not monitored, can remain at large indefinitely – may I suggest tounge in cheek, some may hope just long enough for any vigilant prosecutors to be reassigned or transferred.
Suspects / accused also generally do not sue the government or the complainant even if the case resulted in NFA, DNAA or acquittal. The civil procedure is far too costly and punishing for the average person who has just survived a criminal case, and who just wants to quietly move on with life with the hope that the case never comes back.
IS THERE ANYTHING THAT CAN “ERASE” A CASE APART FROM THE TYPICAL PROCEDURES? FOREVER?
If you are lucky, a sympathetic AG could exonerate you and no one can review that decision, not even by 10 Chief Justices. But unless there is something in black and white, such as an order of acquittal by the Court (again : the Court has the last say so the presiding Judge cannot put it entirely on the PP), or a letter from the DPP or a signed plea bargain, -- or as in the South African case Jacob Zuma, a verbal representation in the media giving rise to legitimate expectation – unless it’s one of these things, who is to say that the next AG will not reopen the case and file charges hard.
Over the years, I have received various enquiries on this very subject. Some modified hypothetical examples:
“My friend is the Timbalan Pengarah Jabatan so-and-so … can he help me?”
“My uncle was the former Director General of so and so department – can he help?”
“My company donated 3 vans to the police department. Surely they can help me?”
“I can get a yellow letter from the YB Minister of (irrelevant ministry unrelated to law enforcement)”
“My son is a good boy and he is innocent. I know him, he won’t commit crime.”
People, and I will not exclude myself, do not behave normally when they are desperate, which means when they or their loved ones are facing a criminal investigation. After years of private practice, I have become more sympathetic and I hope, less judgmental of such people. Because it has come to me so often. Enough people think that dealing with a criminal case is like settling some other problem faced from a government department. It is not like that.
Lawyers do not feel challenged in such scenario. We know that sometimes, non-legal (not saying illegal) methods have worked for some people. This can give the wrong impression to the public that the same non-legal approach is equally effective for all people. Here are some reasons why non-legal methods are not a good basis to make any proper decision on your case:
a. It does not rely on the law. The law can be referenced by everyone and is intended to be objective. If your plan failed, at least you know that you relied on the law.
b. The people who obtained favourable results from non-legal methods sometimes do not tell the whole story.
c. Sometimes the favourable outcome has nothing to do with the non-legal methods employed, but credit is claimed, undeservingly.
d. There are enough lawyers who actually play along with this, so that they can get a cut out of it. I do not like to give false hopes to clients. These lawyers become middlemen to decision makers or can allegedly bring their case to decisionmakers.
It is really funny that proper decent lawyers need to do so much to convince people to follow the legal channels. We should not need to convince people to follow the law. The education system should have done that. Lawyers advise based on the law. If you think there are better ways that can solve your problem, that is not our problem. Go ahead. We will still be here when you return.
WHAT IF IT IS NO LONGER A CRIME?
A criminal case can become no longer actionable if it has been legislated out of existence. For example, when the crime occurred many years ago, it was an offence. However, due to an Act of Parliament, or some other license or instrument issued by a Minister for example, it no longer became an offence.
Showing support to or being a member of a terrorist organisations is a Penal Code offence and triable under the Security Offences (Special Measures) Act. The organization has to be gazette to be recognized as terrorist. However, if the organisation is removed from the gazette, then the criminality of it is likewise removed. You cannot be charged today for committing a crime which today is no longer a crime, but it was a crime yesterday. So you should have been charged for it yesterday while it still was a crime. For that reason, the government should be slow to enforce laws that in its view, is in the process of being repealed or amended. Investigations can proceed but all court cases should be stayed. Even the most well-intended transitional provisions cannot overrule the force of our rights under Articles 7 and 5 of the Federal Constitution.
CAN WE OBTAIN AN ORDER FROM THE CIVIL COURT TO “NFA” A CASE OR TO DECLARE THAT A CASE IS CLOSED?
No. You cannot injunct the public prosecutor or the police in such manner. But again, please see the interesting discussion in Sundarajoo.
CAN THE GOVERNMENT KEEP ALL OUR CRIMINAL CASES IN A SECRET FILE FOR YEARS AND YEARS, AND THEN UNLEASH THEM BEFORE ELECTIONS?
Yes. And the Government does not even need to unleash all at once.
[1] An Nguyen (2015) “It’s about time: Reconsidering whether Laches Should Lie Against the Government” Illinois Law Review. https://www.illinoislawreview.org/wp-content/ilr-content/articles/2015/5/Nguyen.pdf
[2] Ong Teik Thai v PP, where the Federal Court overturned concurrent finding of guilt including my trial conviction.