We often questioned ourselves that what will happen when we commit a crime, how we face such procedure, how to know whether certain procedure are being carried out in a proper manner and so forth. According to Criminologist Paul Tappan defines crime as “an intentional act or omission in violation of criminal law, committed without defense or justification, and sanctioned by the state as a felony or misdemeanor.”An example of crime would be murder. In the Malaysian Penal Code, “murder” is defined in Section 300 which spells out the various definitions of murder. When you know, you have committed such crime there are basically six (6) stages of Criminal Litigation Process that you will face.
Stage 1: Arrest and Investigation
Section 15(1) of the Criminal Procedure Code (“CPC”) provides that: “In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there is a submission to the custody by word or action.”
There are two types of arrest recognised by the Malaysian Criminal Justice System which are arrest with warrant and arrest without warrant. A police officer can arrest you without a warrant if you are suspected of a seizable offence.
The Police have 24 hours to complete the investigation which thereafter the Investigation Paper (IP) should be referred to the Public Prosecutor for further direction. If the investigation cannot be completed within 24 hours, the Police may apply to the Court for the suspected person is remanded under section 117 of the Criminal Procedure Code. During this process the suspected person can request for a lawyer.
Stage 2: Remand
A police can keep you (suspect) under his custody only for 24 hours.If he wants to keep you more than 24 hours then he can request to the Magistrate for an order. The police can apply to extend your detention period twice and up to 7 days or 14 days in total, depending on the type of offence you are suspected.
In most seizable offence which carries imprisonment of less than 14 years, the Magistrate may make an order to remand the suspected person up to 4 days on the first application and shall not be more than 3 days on the second application. For offence punishable with death or imprisonment of 14 years or more, the detention shall not be more than 7 days on the first application and shall not be more than 7 days on the second application.
At this stage a lawyer can be appointed by the suspected person to oppose the remand application by the police. Appointment of lawyer shall be made promptly and possibly the minute the suspected person arrested and brought to the police station.
Stage 3: Charge And Bail
The charge will be announced to you in your own language for a better understanding to know the nature and consequences of the charge.
Then you will be asked whether you wish to plead “guilty” or “not guilty”. In Bahasa Malaysia, you will usually hear: “Adakah kamu mengaku salah atau tidak?”.
- If you plead guilty, the Judge will record the conviction against you and proceed to sentence. During sentencing, you will be allowed to mitigate for a lower sentence.
- If you plead not guilty, you will be entitled to a trial for the Court to determine whether or not you are guilty of the offence charged against you based on the evidence produced in Court. Once you enter your plea of “not guilty” and claim trial, you will be detained until the next Mention (or your next appearance in Court) unless the Court grants you bail.
You have the right to be represented by a lawyer when the charge is read. If the accused pleads not guilty to the charge, the lawyer will apply for bail. The bail application is when the court will hear the submission from the accused’s lawyer on whether the accused can be released from custody after the payment of security deposit to the court. An application for bail is when the court will hear the submission from the accused’s lawyer on whether the accused can be released from custody after the payment of bail to the court. However, some offenses do not include the bailiff, so he or she will be detained further until the trial is over.
If the court gives bail application, the accused will be released from custody. But the criminal case is not over. The accused must attend every trial / mention and trial of the case on the date and time determined by the court. Failure to do so will result in bail and an arrest warrant will be issued against the accused and if deemed necessary for the person acting as guarantor to the accused.
Stage 4 : Pre-Trial Case Management
After the bail proceedings, a new date will be fixed for the case management. All relevant documents and evidence to be used by the prosecution in the trial will be given to the defense lawyer.
Stage 5: Trial
The trial begins with the prosecution calling their witnesses and presenting their evidence to the court. The prosecution at this stage is required to discharge the burden of proving their case beyond reasonable doubts. If the prosecution fails to establish a prima facie case, the court will discharge and acquit the accused.
Stage 6: POST-TRIAL
In the event the accused person is found guilty, the court will sentence the accused person according to the prescribed punishments. Before sentencing, the lawyer will have a chance to ask for mitigation i.e. lighter sentence. After sentencing, the lawyer may also ask for stay of execution pending appeal to the appellate court.
These are the six stages you will go through under the Malaysian Criminal Procedure in brief. ‘Gaining knowledge is the first step to wisdom, sharing it is the first step to humanity’.
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