FORMAL vs INFORMAL PLEA BARGAINING (RUNDINGAN HUKUMAN ) IN MALAYSIAN CRIMINAL LAW
Thomas Bewick (c 1784), wood engraving from “Select Fables”. Reprint of the 1820 ed. published by Houghton S. Hodgson
Plea bargaining is a negotiation between an Accused person and the Prosecution in respect of the type and number of charges and sentencing. Other outcomes may be agreed upon. These concessions can come in several forms, for example:
1. The Prosecution offers an alternative charge that is more lenient than the present charge.
2. The Prosecution withdraws some (not all of the charges). Usually the Prosecution applies that the Court take the outstanding charges in consideration when sentencing the Accused for that one charge that he pleaded guilty (Section 171A of the CPC).
3. The Prosecution agrees to not appeal for a heavier sentence.
The Prosecution typically demands that the Accused pleads guilty to a reduced charge. On top of that there are other demands that the Prosecution may make upon the Accused in the plea bargain. Some examples:
a. To agree to testify as a Prosecution witness against a co-accused or against an accused in another case.
b. To pay compensation to the victim, which depending on how this pans out, may be represented as an order under Section 426(1) of the CPC, 407B or some of the other ancillary powers of the court in relation to property seized/stolen in a criminal case.
c. To withdraw a civil suit against the Government.
d. To leave the country.
e. To make amends with the victim or their survivors, to make a public apology.
f. To agree to plead guilty in consideration for a person arrested together (co-accused or co-appellant) to be released with no charges, or to concede to their appeal.
f. To resolve the matter by pursuing a civil suit[1].
Examples of Plea Bargaining
FORMER MANAGING DIRECTOR JAILED AND FINED FOR INSIDER TRADING
[Excerpt from Securities Commission Malaysia website dated 23 December 2020]
The Kuala Lumpur Sessions Court today convicted and sentenced former managing director of DIS Technology Holdings Berhad (DISTECH), Cheah Yew Keat, for insider trading, an offence under section 188(2)(a) of the Capital Markets and Services Act 2007 (CMSA).
Sessions Court Judge Hasbullah Adam sentenced Cheah, 63, to one-day jail and a fine of RM1 million (in default 12 months imprisonment) after he pleaded guilty to one charge of insider trading under section 188(2)(a) of the CMSA. His admission to the other four charges were also taken into account for sentencing, through a plea bargain application under section 172C of the Criminal Procedure Code.
BEKAS PENGARAH EKSEKUTIF AXIS DIPENJARA KERANA KEMUKA KENYATAAN PALSU
[Excerpt from Securities Commission Malaysia website dated 10 July 2017]
Lee Han Boon dan Saipuddin Lim Abdullah mengaku bersalah kerana mengemukakan maklumat palsu kepada bursa saham berhubung pendapatan Axis sebanyak RM91.13 juta. Daripada jumlah itu, RM51.5 juta adalah palsu yang dikemukakan bagi suku keempat yang berakhir pada 31 Mac 2008.
Lee, 36, bekas pemegang saham utama dan pengarah eksekutif Axis, dijatuhi hukuman penjara selama tujuh bulan dan didenda sebanyak RM200,000. Manakala Saipuddin, 58, juga bekas pemegang saham utama dan pengarah eksekutif Axis dijatuhi hukuman penjara selama 12 bulan.
https://www.sc.com.my/bm/sumber/siaran-akhbar-dan-pengumuman/bekas-pengarah-eksekutif-axis-dipenjara-kerana-kemuka-kenyataan-palsu
Terima suapan, bekas pegawai kebudayaan didenda RM40,000
[From Sinar Harian dated 9 February 2021]
IPOH - Bekas Pegawai Kebudayaan Kumpulan Selendang Perak di Pejabat Setiausaha Kerajaan Negeri Perak didenda RM40,000 oleh Mahkamah Sesyen Ipoh pada Selasa selepas mengaku bersalah atas dua pertuduhan menerima suapan berjumlah RM25,500, tiga tahun lalu.
Peguam Khairil Azwar Khalil yang mewakili tertuduh memberitahu mahkamah bahawa pihak pembelaan dan pendakwaan telah mengadakan Akuan Rundingan dan dipersetujui semua pihak mengikut Seksyen 172C Kanun Tatacara Jenayah.
Artikel Penuh : https://www.sinarharian.com.my/article/123030/BERITA/Semasa/Terima-suapan-bekas-pegawai-kebudayaan-didenda-RM40000
Campak kucing, eksekutif jualan didenda RM20,000
[From Free Malaysia Today dated 25 August 2021]
KUALA LUMPUR: Seorang lelaki yang dirakam mencampak seekor kucing ke tanah tahun lalu didenda RM20,000 oleh Mahkamah Sesyen selepas menukar pengakuannya kepada bersalah.
Ng Teck Ning, 36, menukar pengakuannya kepada bersalah selepas pendakwaan dan pembelaan mencapai persetujuan bawah Seksyen 172C Kanun Prosedur Jenayah.
Dia didakwa mengikut Seksyen 29(1)(e) Akta Kebajikan Haiwan yang membawa hukuman denda RM20,000 hingga RM100,000 atau penjara tidak melebihi tiga tahun.
https://www.freemalaysiatoday.com/category/bahasa/tempatan/2021/08/25/campak-kucing-eksekutif-jualan-didenda-rm20000/
Who initiates the Plea Bargaining and How is it done?
There are 2 methods of the plea bargaining process –
· the established (informal) method, which has been practiced for decades, and
· the codified (formal) method that came into force in 2012 with the new Sections 172C and 172D of the CPC.
Plea bargaining is almost always initiated by the Accused through their lawyer. The lawyer communicates to the Prosecutor that the Accused wishes to engage them in plea bargaining. This process may be initiated at any stage of the case, even after the Accused has been called to enter his defence. It may be initiated by letter (often included in the Letter of Representation, or Surat Representasi), or even a chat at the Bar table before the case is called up.
A resident DPP often knows the range of sentencing that can be expected in his court, so it is worth checking with him whether the Accused’s proposal is realistic. Most resident DPPs just want to do their job and are not out for blood, so the sentencing range is not something they need to hide.
On the other hand, it could be that certain agencies have a policy goal so they need to keep their sentencing range high (imprisonment or fines or both). They may be subject to national, international reporting so they need to keep the numbers up. When engaging with these types of agencies, an Accused should, where possible and beneficial to their own case, keep the agency placated and put forward a (at least “optically”) generous tradeoff that makes the agency look good in the press and in their annual reports. If you get a good deal, you should not sound the horn — let the matter be settled quietly so as to not draw attention to the agency’s decision.
Rarely, plea bargaining is intimated by the prosecutor, recommended by the Court, or brokered by the investigating officer. In open Court, the presiding Judge may make statements suggesting whether trial is worthwhile or even indicating the range of sentencing if the Accused would plead guilty.
In the next few paragraphs, I refer only to the established (informal) plea bargaining and not the codified method. The codified method will be discussed further down.
HOW DOES THE ACCUSED MAKE SURE THAT THE PROSECUTION KEEPS IT PART OF THE BARGAIN?
For the Defence, it is highly improbable (nearly impossible) for an Accused person to enforce the plea bargain, and the method of enforcement would depend on the type and form of concession promised.
One of the obvious difficulties is a plea bargain is not recorded anywhere. Here I mean the informal method only. Sometimes the Prosecution may respond to a Letter of Representation with their own written reply, which may set out their agreement in very broad terms. From our experience, if the Prosecution agrees to a Representation, more often than not there will be no written reply, especially if it is a police case. Therefore there is nothing to hold the Prosecution accountable before the court, particularly the appellate court.
I speculate though, that it is this lack of written response, lack of formality, that may actually encourage and promote the plea bargaining process for police cases. This could explain the general unpopularity of codified plea bargaining. I have shared links to 4 examples of cases above, but codified plea bargain are still grossly underrepresented in the broad scheme of criminal justice. I hope a researcher could someday compile and publish writing on this issue, to inform us the statistical take-up of formal plea bargaining applications and their success rate.
PROBLEM ARISING FROM THE OLD WAY OF PLEA BARGAINING
Besides unenforceability (which in my view could be a problem for both established and codified plea bargaining) is the fact that it is unrecorded – except for the occasional trial lawyer who insists it be placed on record or the magnanimous DPP who replies in writing to the Accused’s Rep.
Below we share 3 examples of this inherent problem with the established method of plea bargaining, the first two was a problem for the accused and the third became a problem for the prosecution.
i) In K PARAMESWARAN KALIMUTHU LWN PENDAKWA RAYA [2019] 1 MLRA 656, the Appellant asserted that the Prosecution offered him a sentence of 10 years imprisonment, and on that basis he pleaded guilty. The Court of Appeal dismissed the Appellant’s assertion and found there was nothing on record to show the actual sentence imposed (18 years instead of 10 years) was imposed on account of a plea bargain. His Lordship Mohtaruddin Baki JCA found at paragraph [10] of the said judgment,
“Kami telah meneliti rekod rayuan untuk menentusahkan hujah tersebut. Pada hemat kami, tiada “plea bargain” menurut undang-undang di hadapan hakim bicara.”
ii) The Court of Appeal in PENDAKWA RAYA LAWAN YAP SOOI LOONG [2016] MLRAU 171 found:
“[26] Dalam keadaan di mana rundingan akuan tersebut tidak direkodkan menurut s 172C, KAJ, maka rundingan akuan tersebut sesungguhnya tidak wujud di sisi undang-undang, tidak mempunyai atau membawa sebarang kesan ('effect') ke atas bentuk penghukuman yang akan dikenakan dan sewajarnya diabaikan sama sekali. Ia tidak menjadi faktor yang relevan untuk dipertimbangkan oleh mahkamah.”
iii) The Court of Appeal in PP v MANIMARAN MANICKAM [2011] 1 MLRA 636 opined that as there was uncertainty as to whether there existed an understanding (plea bargain) between the prosecution and the accused, there was therefore doubt whether the plea was unqualified. The outcome was the conviction was set aside.
“[29] Back to the issue as to whether we should allow the Public Prosecutor's appeal. Under normal circumstances, we would have done so. However, in this case, it appears that there is a dispute as to the circumstances that led to the respondent pleading guilty to the amended charge. The respondent is claiming that he had pleaded guilty to the amended charge on the understanding that the sentence imposed by the court would be the sentence earlier agreed between the prosecution and the defence. Such understanding is being disputed by the prosecution. As stated earlier, the problem is, nothing is being recorded by the learned trial judge other than what he had said in his grounds of judgment.”
IF YOU THROW SHADE TO THE PROSECUTION, THEY CAN HIT BACK MUCH HARDER
Generally, the Prosecution does not worry about the Accused breaking their promise because when the Prosecution offers an alternative charge, the main charge is still maintained. Even if the main charge were withdrawn, the Prosecution has the power to file new charges, subject to the rule of res judicata, autrefois acquit, and legitimate expectation (Jacob Zuma). This is because charges that are withdrawn may be recorded as having been subject to “discharge not amounting to acquittal” which may be re-charged again, or “acquitted and discharged” which bars re-charging until that order is set aside by a higher court.
Being the custodians of public interest, Prosecutors are generally savvy about this and will ensure that they will not lose out on a plea bargain.
In a criminal case, particularly commercial crimes involving many transactions, or cases of corruption, sometimes, the entire case is not disclosed in the charges. There could be many more offences but they were not investigated by the investigation, or not charged by the prosecution, or not revealed by the complainant, or suppressed by the witnesses. There could be practical reasons for this (unwilling witness or witnesses overseas etc) or pragmatic reasons (save the extra ammunition until really needed) or police reasons (police not acting on the advice of the Prosecutor, or interpreting such advice based on imperfect understanding, not collecting evidence, etc).
In other words, do not attempt to cheat the Prosecution because they have the resources to turn the tables on you; if not today, tomorrow.
How do you Enforce a Plea Bargain Agreement?
It is not really a contract even if it resembles one. I will not elaborate on this, but suffice to say it also relates to public interest and lack of consideration.
I think you may still benefit from some illustrations on what happens to parties who break their promise. As you can see, the agreement is not really “enforced” but it is acted on by the avenging party against the reneging party, sometimes by or through the powers of a third party (the Court).
Fictional examples:
a. “Enforcement” by statute. The Accused agreed to plead guilty in exchange for the Court to order he be released on a bond of good behaviour under Section 294, 173A of the CPC. So he promises to not offend nor re-offend for a period of, say, 2 years. Here, this “binding over” order provides an in-built mechanism to “enforce” the plea bargain because it is already provided in the CPC as a term of the bond. Let us say that the Accused breaks his “promise” and commits an offence afterwards. He therefore will be in breach of the terms of his bond, therefore he will be summoned (or arrested, and brought to) Court where he will face the full force of the sentence for that first-mentioned offence. The moral thrust of his mitigating factors may be adversely affected, too.
b. “Enforcement” by retributive action. I cannot prove this exists, but this is surely possible. The suspect is a henchman who agreed to testify in a trial against the kingpin, in exchange for a lenient charge or sentence, or in exchange for immunity from prosecution. The suspect reneged on this agreement; he disappeared or he refused to provide favourable evidence. The Prosecution instructs the Investigating Officer to enforce the bond issued under Section 118 of the CPC, and/or with instructions to arrest the suspect and file multiple charges against him. The Prosecutor can advise the Investigator to lodge a report against perjury, and initiate a case for giving false evidence.
c. “Enforcement” by judicial review. The Prosecutor promised that no appeal for heavier sentence will be filed and this had been reduced in writing. In fact, the Prosecutor was not authorized by their department to make such promise. The Accused would need to move the High Court either under a criminal jurisdiction or perhaps in a judicial review capacity to estop/prohibit the appeal, relying on administrative law concepts such as legitimate expectation, which had occasionally made inroads into criminal law in other countries like Jacob Zuma in South Africa. The recent case Sundra Rajoo has also revisited the question on whether the discretion of the Attorney General in criminal matters can be reviewed by the court. Perhaps an order from a civil court would be needed to intervene, with declaratory orders. It could get ugly, with both sides filing contentious affidavits and casting aspersions. One party may even require the presiding judicial officer to depose an affidavit, which could be embarrassing. I do not comment here whether any of these suggestions are appropriate, but we are aware that they could have happened in real life.
d. “Enforcement” by setting aside the plea itself. The Prosecutor promised that no appeal for heavier sentence will be filed, but later a different officer took over the matter and filed an appeal anyway. Relying on this promise, the Accused pleaded guilty. Upon receiving the Notice of Appeal by the Prosecution, the Accused could attempt to move the High Court to set aside the conviction entered by the lower court because it was a qualified plea. It is difficult to set aside a plea of guilt by an unrepresented Accused because the trial court would have ensured that all the trappings of fair procedure would be recorded, in writing and CRT. What more by an Accused represented by counsel. Please see PP v MANIMARAN MANICKAM [2011] 1 MLRA 636 (supra).
CODIFIED PLEA BARGAINING
From here on, I am discussing the codified plea bargaining only.
In 2012, a new formal procedure for plea bargaining was introduced through the Criminal Procedure Code (Amendment) Act 2010. This is how it was intended to proceed:
The Accused signs and files a Form 28A to Court. He must state whether the plea bargaining application is for sentence or charge, but not both.
The Court then issues a notice for parties to appear for hearing of the plea bargaining application.
On the date of the hearing of the plea bargaining application, the Court examines the Accused to ensure he has made the application voluntarily.
The parties then “proceed to mutually agree upon a satisfactory disposition of the case”. This means that an agreement has been reached on the sentence or charge. I interpret this to mean the negotiation happens at this stage and it may require more than one hearing date of this application.
The agreement is recorded in writing and signed by the Accused, his lawyer, the Prosecutor and the Court.
If the agreement is on sentence, then the Court will find the Accused guilty and pass sentence.
If the agreement is on charge, then the trial will proceed as in a normal case, on the charge agreed by parties. If the Court finds the Accused guilty, it shall pass sentence like in a normal case and this sentence is not affected by any agreement (because the agreement was on charge only). The Accused may appeal. However, if the Court finds the Accused not guilty, then he shall be acquitted and discharged like in a normal case.
Lawyer and friend Alex Netto, partner and co-founder of Messrs Anton & Chen filed an application for plea bargaining under Section 172C of the Criminal Procedure Code. After about a month, the Court issued a Notice for Hearing of the application. He explained:
You file this first under a general heading:
Shared with permission and altered for privacy
2. The Court issues this Notice to the DPP, Accused and Defence Counsel to attend the proceedings:
Shared with permission and altered for privacy
Back to the law.
Below were the explanatory notes at pages 16-17 of Rang Undang-Undang D.R. 17/2010 for the Criminal Procedure Code (Amendment) Act 2010, which provided for a codified plea bargaining process:
“Seksyen 172C bertujuan untuk mengadakan peruntukan mengenai rundingan akuan. Mahkamah mempunyai kewajipan untuk memastikan bahawa tertuduh telah membuat permohonan untuk rundingan akuan secara sukarela. Mahkamah juga mempunyai kewajipan untuk memastikan bahawa proses itu dibuat secara sukarela antara Pendakwa Raya dan tertuduh. Apabila isu sukarela diselesaikan, tertuduh dan Pendakwa Raya kemudiannya hendaklah mencapai persetujuan secara bersama mengenai pelupusan kes yang memuaskan. Jika tertuduh dan Pendakwa Raya tidak dapat bersetuju mengenai pelupusan kes yang memuaskan, kes itu hendaklah dibicarakan di hadapan Mahkamah lain supaya tidak memudaratkan tertuduh.
Seksyen 172D memperkatakan pelupusan kes oleh Mahkamah. Mahkamah hendaklah melupuskan kes itu dengan membuat perintah di bawah seksyen 426 Akta 593, atau jika rundingan akuan itu berhubung dengan pertuduhan, mendapati tertuduh bersalah atas pertuduhan yang dipersetujui dalam pelupusan yang memuaskan itu dan menghukum tertuduh dengan sewajarnya, atau jika rundingan akuan itu berhubung dengan hukuman, mendapati tertuduh bersalah atas pertuduhan dan menghukum tertuduh di bawah seksyen 293 atau 294 Akta 593 atau menghukum tertuduh dengan tidak kurang daripada setengah daripada hukuman maksimum yang dikenakan di bawah undang-undang bagi kesalahan itu. Apabila terdapat tempoh minimum pemenjaraan diperuntukkan, hukuman itu tidak boleh kurang daripada tempoh minimum itu. Dengan itu, terdapat suatu mekanisme untuk mendorong tertuduh untuk mengaku salah dan pada masa yang sama dapat membuat jangkaan yang lebih baik tentang julat penghukuman yang boleh dikenakan”.
As you can see, there was no intention to prohibit existing informal methods of plea bargaining. It just so happens that human nature encourages people to prefer an informal, easier process in favour of a formal, codified process, if they are given the option.
The codification of this method of plea bargaining does not exclude the established method of plea bargaining discussed earlier above. These much-anticipated amendments (the new Sections 172C and 172D of the CPC) aimed to help dispose cases faster by increasing the number of cases disposed by plea bargaining.
Though I do not have the statistics, I am confident that the newer codified method has failed to compete with the established method of plea bargaining, for police cases. I go so far as to say that it is not even a serious contender, despite its advantages. However, certain agencies appear to be more open to consider codified plea bargaining applications. As mentioned earlier, I hope academia can obtain the numbers so that we can scrutinise the results and tweak the law/practice if we are serious about making this work.
Below are my views on the advantages and disadvantages of the codified method.
Advantages:
(i) The DPP cannot avoid discussing terms. It is the only method where the Accused can compel the DPP to come to the negotiation table to discuss terms of settlement. Therefore, the codified method is useful in situations where the Accused had sent a representation offering to plea bargain, but there has been no decision for months on end. It could also be used after the DPP has rejected the representation.
(ii) A written agreement makes all parties accountable. The end result is a kind of written settlement agreement, called a “satisfactory disposition of the case”, and the Court shall give effect to the said satisfactory disposition.
Disadvantages:
(i) No freedom to contract. Unlike the established method of plea bargaining, the codified method restricts what the parties can agree on. There are limitations to:
a. The types of offence that can be settled is very limited. More on this below.
b. You can only choose to plea bargain on sentence or charge only and not both
(ii) Deterrant Factor. There is no motivation or incentive for the DPP to actually see through the plea bargaining process. Disposal of cases is not the KPI of prosecutors. Conducting a proper trial fairly is. This of course could be affected by the policy of the agency that the DPP is attached to, if at all.
(iii) “Finality of Judgment” clause. The golden outcome for a codified plea bargaining seems to be found at Section 172E.
WHY IT IS IMPORTANT TO PLACE A PLEA BARGAIN ON RECORD
As referred in Parameswaran and Yap Sooi Loong above, the appellate courts in those cases disregarded the plea bargain because it was not on record, even though the trial judge had took note of the same in the grounds. As discussed, if there is some way the parties can retain a recorded document, all the better, for example a letter of Representation or a response from the Prosecution. Perhaps if the court recorded the terms in open court, with such terms recorded in the notes of proceedings. There is really no specific form.
An agreement in conformity with the statutory requirements of the codified plea bargaining could be the answer.
We are minded of what happened in SUHANI MAT DAUD v PP [2011] 1 MLRH 294. In that case, the complainant himself wrote to the Attorney General’s Chambers to withdraw his police report made against the Appellant because she agreed to pay back money belonging to him in five instalments. The Appellant paid back the entire RM280,000 in seven instalments.
Despite this “settlement” between the Appellant and the complainant, the Prosecution went ahead and charged her for criminal breach of trust.
This is what happens when the accused and the victim attempt to settle outside of court on their own. You cannot assume that a criminal case will be withdrawn automatically just because the victim has agreed to withdraw their report, even if the victim themselves wrote to the Attorney General’s Chambers. Ultimately you need to secure the position of the Public Prosecutor. Plea bargaining happens between the Accused and the Prosecution, not with the victim. Presumably, the Appellant and the complainant failed to secure that written reply from the Prosecution stating they agreed with the representation.
The Learned Judicial Commissioner upon hearing the appeal, upheld the conviction and noted:
“[10] The appellant was subsequently arrested by the police on 13 March 2008 and according to the investigating officer for commercial crimes one Chief Inspector Gannason a/l Andi (PW9), the first directive to charge the appellant was issued on 18 March 2008. She was then supposed to be charged in court on 22 March 2008 but it did not materialize as the appellant herself had forwarded a representation to the Attorney General's Chambers.
[11] By a letter dated 18 March 2008, PW1 wrote to the Attorney General's Chambers wishing to withdraw his police report made against the appellant on the ground that she had undertaken to make restitution to PW1 by paying back the amount of RM270,972.16 in five installments.
[12] Beginning from 30 March 2008 until 17 November 2008, the appellant finally paid back a sum of RM280,000 by seven installments.
[13] Nevertheless, the whole episode eventually culminated in the appellant being charged in court on 28 July 2008 for the offence of criminal breach of trust under s. 409 of the Penal Code .
[14] On 5 March 2010 after a full trial, the Butterworth Sessions Court found the appellant/accused guilty and convicted her of the offence. She was sentenced to two years imprisonment to be enforced from the date of the sentencing. Nonetheless, the Sessions Court granted the application by the appellant/accused for a stay of the execution.”
IS IT WORTH IT? SHOULD YOU BOTHER WITH THE CODIFIED PLEA BARGAINING?
In my view, there is no compelling reason for an Accused to pursue and no compelling reason why a Prosecutor should entertain a plea bargaining process. The only special factor about it is subsection (3) to Section 172C, because it is the only way that the Accused can force the DPP to attend and discuss.
But the Accused should consider giving it a try, because he has nothing to lose and because the media releases of certain agencies show that they are open to agree to low imprisonment sentence in exchange for fine. I won’t tell you which one, just spend some time on the internet and you will know from the horse’s corporate mouth.
An Accused person (or the cartel behind him) who has money to pay a big fine but cannot spend a day in jail, is a perfect fit for an agency that would trade big fines for and lower jail sentences. Lower jail sentences tends to mean 1 day of jail. 1 day of jail does not mean the Accused for sure spends a full day in the jail cell. It means he goes home at the end of the day in court and sometimes he just waits in the court room. Civil society and stakeholders who are interested should scrutinise their agency very closely and watch for their enforcement trends. If it is a case of “better we get a fine with 1 day jail than no conviction at all”, then the agency’s investigation techniques, headcount, resources, competency, bonus/promotion policy should be reviewed. In the first place you should not file charges unless you have the evidence. If you file charges just to scare or humiliate or give “industry signals” with the hope that the Accused will pay a big fine, you are actually depleting an important resource : The integrity of the Charge. You want a charge to put the fear of God into hearts of the offenders. Not something that will just be built in into the cartel’s risk/cost analysis.
I repeat: whenever a decision is for one day jail — stakeholders should not be overly impressed — it means the Accused goes home at the end of the day. For those who look out for the moral thrust of imprisonment, please study whether the agency is in the habit of investigative detention — how often do they arrest suspects, what lockup facilities are available (whether they have any at all) and whether they ever apply for extension of remand. Myself, I am against detaining people for the sake of it. But for stakeholders, you would favour an industrial ecosystem where the fear of remand is as real as the fear of jail.
The result is this: Some Accused will end up never spending a single day in lockup/jail if they play their cards right.
So this is my view of how stakeholders and interest groups could react to a proliferation of codified plea bargaining, especially when the offenders have lots of money and they are seen to “get away”.
Codified plea bargain could be used strategically when all representations have been rejected or have no decision for months on end. It can be used to support a representation that has just been sent. Perhaps the date fixed for hearing of the plea bargaining application could be a way that the Court can nudge the DPP to consider the application. Just like mediation in civil cases. The Court could even assist the parties with possible sentencing outcomes. That could possibly be the reason why the Court is included in the hearing of the plea bargaining application.
In real life, all my suggestions in the paragraph immediately above happens anyway even without those amendments that inserted Sections 172C and 172D. Some Courts do make off-record statements in open court or in chambers about possible sentencing range — the practice varies from court to court.
The codified plea bargaining process is very limited by what it can achieve. But it does well with what it can achieve. Below are some of my views on the limitations.
(I) UNENFORCEABILITY OF THE AGREEMENT
It fails to remedy the weakness of the established plea bargaining method, which is unenforceability. There is no clear procedure to enforce an agreement made under the codified plea bargaining procedure.
I speculate that perhaps an Accused person could file a preliminary objection if the Prosecution files an appeal against sentence imposed pursuant to a codified plea bargaining process. That being said, I am not aware whether the appellate court is prohibited from hearing or allowing the Prosecution’s appeal in such scenario. I do not think the wordings of Section 172E, which is comparable to the wordings of Section 305 of the CPC, are clear enough to prohibit an appeal from the Prosecution against sentencing. Even if they made an agreement in respect of sentencing and sentencing was recorded under Section 172D(1)(c) of the CPC.
That means there is no safety for Accused who have agreed to plead guilty on sentence. There may be a finality of judgment, but nothing stops the sentence from being relitigated by either party on appeal.
Weighing the interests on both sides, in my opinion it is unlikely that either side would renege on a formalised agreement. There is more at stake than just a sentence for one Accused. For that Accused, the sentence means the world, but for the agency, there is reputational risk at stake, institutional integrity and lots of paperwork and things to answer for internally. After all that work, I do not see any benefit for them to renege.
Fictionally, there could be, let’s say, a prosecutor who wanted to close the deal to get the case to be disposed. They would bypass the internal paperwork and make the deal on their own with the defence and the court. The defence and the Court would not check with the bosses. I will let you connect the dots.
From my reading, I am assuming that the drafters included Section 172E of the CPC to protect the integrity of an agreement achieved after codified plea bargaining. I am not sure what is the value-add of this Section 172E because we already have Section 305 of the CPC, which has existed for a long time. Section 172E would have added value if the bar against an appeal operates upon the Prosecution as well as the Accused who pleaded guilty. This is all that is said about Section 172E, at page 18 (in the Explanatory Notes) to the said Bill:
“Seksyen 172E memperuntukkan bahawa penghakiman Mahkamah di bawah seksyen 172D tidak boleh dirayu kecuali mengenai takat dan kesahan hukuman itu.”
Without working experience in the drafting division of any lawmaking body, I am unable to explain why such an obvious point is so laboured as an Explanatory Note.
(II) EXCLUDED CATEGORIES ARE HUGE
A glance at Section 172D tells us what kind of offences that cannot be subject to plea bargaining. These excluded categories are so huge, that it rules out the kinds of cases that you would want to resolve by plea bargaining. Putting aside the excluded categories, what remains are small cases that you could resolve by pleading guilty and getting fined only anyway, or which could be “risked” a trial because those small cases are usually investigated with less rigour compared to serious cases – presumably thanks to the prevalence of small cases resolved by pleading guilty and not going for trial.
(III) SOME COURTS MAY IGNORE WHAT THE STATUTE SAYS ABOUT THE EXCLUDED CATEGORIES
One of the excluded categories that cannot be subject of codified plea bargaining are for so-called serious offences (Section 172D(3)(a) of the CPC). Under that provision, serious offence generally means offences where the court may impose a jail sentence of not less that 10 years. Subsection 172D(4) reads:
“(4) For the purpose of paragraph (3) (a), "serious offence" means an offence where the maximum term of imprisonment that can be imposed is not less than ten years, and includes any attempt or abetment to commit such offence.”
On a cursory reading of the provision, it means that any offence entailing a jail sentence of up to 10 years is not a serious offence. Unfortunately, even the codified provision does not assist us. This is because the High Court in PP v ASRI CHE DIN [2018] MLRHU 973 saw it fit to undertake a purposive interpretation and make a finding that a serious offence includes the offence before it under section 6(1) of the Corrosive and Explosive Substances and Offensive Weapons Act 1958, even though that offence should not qualify as an excluded category.
In that case, the trial court ordered that the Respondent be bound over on a bond under Section 294(1) of the CPC.
This is what the learned Judicial Commissioner opined at paragraph [21] of the said judgement:
“[21] The court may upon conviction under subsection 6(1) of the CESOWA impose a ten-year imprisonment and not more. So it appears to be a non-serious offence if the definition provided by s 52A is applicable. Hence, subsection 294(1) of the CPC can be invoked and would not be caught by the amendment. However, this will not be consistent with the intention of increasing the punishment for subsection 6(1) of the CESOWA. It is pertinent in this respect to consider the speech delivered by the Deputy Minister of Home Affairs when he moved the amendment to CESOWA.”
Further down:
“[23] The impression I have is, if the court can impose a term of imprisonment of ten years or more the offence is termed as serious offence. It is a non-serious offence if the court can only impose a sentence of ten years and below notwithstanding the minimum or maximum term of imprisonment that is fixed by law for a particular offence.
[24] If I hold an offence under subsection 6(1) of CESOWA as non- serious then an offence under subsection 41(1) of the Road Transport Act 1987, as comparison, which provides a sentence of imprisonment for a term of not less than two years and not more than ten years upon conviction would also be classified as non-serious. Surely that does not reflect the intention of the Legislature in enacting s 41 as an offence that carries the highest penalty under the said Act.
[25] Therefore, I do not think an offence under subsection 6(1) of CESOWA is or should be classified as a non-serious offence.”
I am not aware of any other judgment that has overruled the above. The implication is that despite how an offence has been statutorily classified under the plea bargaining provision (Section 173D(4) of the CPC), the Court can disregard it on appeal if the Court feels that the offence is a serious offence according to the Hansard. At least for 2 examples referred by the learned Judicial Commissioner:
i. Case under Section 6(1) of the Corrosive and Explosive Substances and Offensive Weapons Act 1958; and
ii. Section 41(1) of the Road Transport Act 1987.
This despite what some of us learned in law school that the proceedings in Parliament should not be an aid in interpretation of statutes. It is being done more and more. Perhaps some may think that the quality of Parliamentary debate is also enlightening and illuminating more and more.
Pigot J speaking for the bench of the High Court of Calcutta in Queen-Empress vs Sri Churn Chungo (1895) ILR 22 Cal 1017 commented:
“7. We do not propose to consider the history of the Penal Code from its original draft by Lord Macaulay in 1840 to its becoming law in 1860. Their Lordships of the Privy Council, in the recent case of The Administrator-General of Bengal v. Prem Lall Mullick ante, p. 788 : L.R. 22 I.A. 107 have held that it is not competent to refer to proceedings of the Legislature as legitimate aids to the construction of a law.”
WHAT KIND OF CASES COULD BENEFIT FROM THE CODIFIED PLEA BARGAINING PROCESS?
First, I think there could be a niche for codified plea bargaining in lower-end[2] commercial crime cases, such as:
a) Dishonest misappropriation of property (Section 403 of the Penal Code)
b) Dishonestly receiving stolen property (Section 411 of the Penal Code)
c) Dishonest or fraudulent removal or concealment of consideration (Section 424 of the Penal Code) – sometimes used for bank mule cases.
Second, higher-end commercial crimes that may be considered “victimless crimes” such as insider trading and making false declaration of profits. I am not making a judgment whether they are truly victimless. Some corruption cases have been resolved by way of codified plea bargaining. Earlier, I assumed that plea bargaining would not be entertained for serious offences (regardless of the statutory definition of serious offence), but some agencies are doing it.
Arik’s Tip (On the Effect of Publicity on the Course of Justice) :
As mentioned above, if you are an accused person who benefitted from plea bargaining, please do not highlight what the agency has done “for you” to the media, social media, or even your social circle. The agency may not be so generous next time. Furthermore, you will not know for sure the true reason the agency agreed to your proposal for plea bargaining. It could have something or nothing to do with your representation. So do not get cocky or sell your story as though it is automatically applicable for other cases.
On the other hand, you should not assume that the agency’s reluctance to entertain your application for plea bargain means that your proposal has no merit. It could be that their hands have been tied due to superior orders, agency policy or the publicity of the case (or your own audacity in committing the crime).
I formed this view on the effect of publicity from my own experience and anecdotes from reliable sources. In one case, I was informed by a reliable source that my letter of representation and plea bargain could not be considered because the case had “gone viral” thanks to the complainant having uploaded and shared his video footage of his child’s injury — due to spilled hot coffee. My client was eventually acquitted after full trial and sustained on appeal despite no less than 4 letters of representations being sent.
Third, codified plea bargaining could also be desirable for cases where the Accused occupies a position of public trust, such as a bank officer, politician, office bearer of an NGO, member of a masjid/church/temple committee or public servant — because their industry/profession is unable to tolerate a record of conviction.
Fourth, there are also other lower-end cases that fit the bill, such as of mischief, other less serious property crimes, cases of hurt, lesser agency-based offences, unlawful assembly and the like. But unless the Accused is not of those categories of persons mentioned above (where the industry would not tolerate a criminal record), you might as well plead guilty and mitigate really well to just get fined or bound over. At the lower court for these lower-end cases, you can sometimes get away with just pleading guilty and getting fined only – but this is subject to the facts and law involved, do not take my word for it.
HOW CAN THE CODIFIED PLEA BARGAINING BECOME MORE POPULAR?
Publicising it is a good idea, but it can have repercussions in our sentiment-driven world. Netizens do not sympathise with convicted offenders unless there are some humanitarian aspects (desperate theft for food etc.) or the accused was a political martyr. Many Malaysians are great moralists until their loved one or political idol is arrested.
I do not have any studies before me on the effect of publicity and sentiment on the decision-making of the Public Prosecutor or the Courts. Intuitively I know this happens.
I suppose we just need more lawyers, prosecutors, judges and court staff who are familiar with the procedure; hopefully the passage of time will allow the codified method to self-proliferate For now, I have reliable anecdotes that the court staff were unfamiliar with the procedure. But for a few of course.
Since the Public Prosecutor holds the reins on all criminal cases, if they wish to promote the use of this codified plea bargaining, the Public Prosecutor could issue an internal directive prohibiting any plea bargaining except through the procedures so codified. Even stronger, to instruct that all Representasi be rejected except if presented through or supported by a codified plea bargaining.
OTHER COMMENTS
I took this out of the first run of this write-up, but have decided to re-insert it. I do not know where to fit it in. The following is entirely opinion and does not fit well in all scenarios and should not be taken to represent all enforcement regimes.
I do not see why so much effort was put in, not one, but two “rounds” of amendments (A1378 and A1422) and the style of drafting has so much cross referencing within the same few sections and subsections, perhaps more than any other part of the entire 445 sections of the CPC.
I hate to say this. The truth is, for so much drafting work, there is so little value in this procedure for most of the criminal justice system. I trust many many hours of interdepartmental and stakeholder meetings, many working papers, late nights and fiery e-mails, and noble intentions, over weekends, had transpired in the creation of the bill and then its legislative process in Parliament. I really do not know how to salvage such an unworkable, unattractive procedure. I hope learned friends out there can illuminate us on the most helpful way to put this procedure to use.
I can only see codified plea bargaining as a worthwhile prospect for those higher-end commercial crimes. These involve:
Accused with a lot of money and low jail tolerance.
Enforcement agency that is open to big fines with 1 day jail.
Public not really concerned or does not give outcry to low jail sentences — they do not even understand what is at stake. Lack of media interest.
This includes a typology of Accused who need to have a commitment in writing from the Prosecution that no appeal will be filed. Nearly all Accused might desire such commitment if you ask them honestly, but not all of them are facing the same type of agency regime.
For that reason, it means the codified procedure (for now and under the present observations) only benefits a small segment of the entire criminal justice system. Because a commitment in writing is the only novel thing this procedure creates. Because wealthy Accused are presumed to pay their lawyers more and require more concrete assurances in writing, such as a signed plea bargain agreement. And poor Accused on legal aid have to just accept the wait after their 2nd, 3rd rejected Representasi and hope the Prosecution blunders during trial.
Because the only reason an agency would take the trouble to issue such written commitment under these procedures is because the agency wants the money and doesn’t need him in jail. Fines are paid to the Consolidated Fund and not the agencies directly. But the numbers “recovered” are reportable and looks good.
I do not have sympathies to accused persons just because they are poor, but I do have a problem with them being denied opportunities and access to justice because the system does not know how to or is unwilling to give them such access — or the cost to access is too high. Even if a client is charged for a burglary case, even if he is rich pays his lawyer generously, he might not benefit from this procedure because the police and prosecutors handling such cases just do not have time nor interest for it — hence I go back to my earlier point, the codified method is beneficial because it is the only way to compel the DPP to talk terms.
[1] Please study and follow the case ANG POK HONG & ANOR v PP [2017] MLRHU 554 which the High Court referred to the Federal Court for determination of certain constitutional matters).
[2] When I say lower-end it means the lower end of the sentencing range.