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Procedures In Criminal Cases

1. GENERAL INFO

WHAT IS A CRIMINAL PROCEEDING?

  • Criminal proceeding is a legal proceeding where an accused person is prosecuted for committing a criminal offence and can be sentenced upon conviction.

HIERARCHY OF TRIAL COURT

  • High Court – to hear all criminal cases punishable with death
  • Sessions Court – to hear all criminal cases except cases punishable with death.
  • Magistrates’ Court – to hear all criminal cases which carry maximum term of imprisonment sentence of 10 years of imprisonment and/ or fine.
     

PARTIES IN CRIMINAL PROCEEDING

  • Magistrate/ Session Court Judge – A judge who will preside the proceeding in court.
  • Prosecutors – A Legal Officer who will conduct prosecution proceeding of the accused person.
  • Defence Counsel – A Lawyer representing the accused person.
  • Witnesses – Persons who will be called by the prosecution/ defence counsel to give evidence in court.
  • Accused – A Person charged for committing a criminal offence.
     

EXAMPLES CRIMINAL OFFENCES

  • Public nuisance
  • Rape
  • Voluntarily causing hurt
  • Causing miscarriage
  • Wrongful confinement
  • Assault
  • Kidnapping
  • Incest
  • Theft
  • Extortion

2. WHAT US REMAND

  • A suspect can only be detained for the purpose of police investigation in the police station for not more than 24 hours.
  • If the police investigation cannot be completed within this period and the police wish to detain the suspect beyond 24 hours, an application for further detention must be made within 24 hours to the Magistrate’s Court.
  • A Magistrate is a judicial officer who has the power to make a remand order.
  • A person is “remanded” when the Magistrate gives a remand order to extend the suspect’s detention beyond 24 hours.
  • The purpose of remand is to give more time to the police to complete the investigation and to decide whether there is enough evidence to charge the suspect for the suspected offence. The police must make the remand application without unnecessary delay.
  • At the remand stage, a suspect is still considered innocent. 

3. WHAT HAPPEN IF I GET REMANDED

What Happens During Remand?

  • The police must give reasons to the Magistrate to justify as to why they need to detain the suspects beyond 24 hours. The Magistrate will consider these reasons carefully.
  • If the offence investigated relates to imprisonment of less than 14 years, the detention shall not be for more than 4 days on the first application and subsequently, not more than 3 days on the second application.
  • If the offence investigated relates to imprisonment of more than 14 years, the detention shall not be for more than 7 days on the first application and not more than 7 days on the second application.
  • During remand, a suspect may request to:
    • be represented by a lawyer;
    • contact his or her family members;
    • get medical attention;
    • make complaints if he or she was ill-treated or denied proper food, water or clothing.
  • At the end of the remand application, the Magistrate may make a remand order or may refuse to grant one. If the Magistrate refuses the remand, or the period of the second remand lapses, the police must either charge the suspect or release him.
  • If an order for remand is made, suspect will be taken to the police lockup.
  • The suspect may be allowed visits by his or her lawyer or family members.


 

1. WHAT DO I DO IF I AM PROSECUTED

What happens If I Am Prosecuted?

  • When you are charged in court you will be referred to as ‘accused person’.
  • The court interpreter will read out the charge to you.
  • You will then be asked if you understands the charge.
  • You will be asked whether you pleads guilty or claim for a trial.
  • The Court will then record your plea.

2. WHAT ABOUT BAIL

WHAT IS BAIL?
Temporary release of an accused person upon depositing sufficient securities to the court and an undertaking by the bailor to ensure the attendance of the accused person throughout the trial.

WHO CAN BE A BAILOR?

  • An adult (aged above 18 years).
  • A Malaysian Citizen (for non-citizen, the person shall be subjected to the condition to be imposed by the court);
  • For a foreign accused person, the bailor shall be a Malaysian Citizen;
  • Understand all the conditions imposed by the court;
  • Able to produce the bail fixed by the court.

BAIL PROCESS

  • Bail will be processed at the relevant court registry;
  • The bailor must produce the following:
  • The bailor’s identity card; and
  • The saving account/ fixed deposit to be used as bail
  • The Registry/ Magistrate will explain the conditions of the bail to the bailor and the accused person.
  • The bailor will be given a reference letter which must be kept for any matters relating to the bail bond.

WHAT IS THE RESPONSIBILITY OF A BAILOR

  • The bailor must ensure the attendance of the accused to the court on the dates fixed by the court.

RISK OF BECOMING A BAILOR

  • If the bailor fails to adhere to any of the condition of the above bail, the court may forfeit the bail.

3. SENTENCES

Sentencing

  • The Court will pass the sentence according to law.  A sentence may include either one or more of the following:
    • imprisonment,
    • fine,
    • whipping.
  • The Court will only pass a sentence after considering the seriousness of the offence, any previous convictions (if any), a plea of mitigation factors and aggravating factors.
  • Plea of Mitigation 
    • A "plea of mitigation" is when the accused asks the court for leniency in sentence.
      • Mitigating factors may include;
        • Family background, educational qualification, medical history, employment history and any other relevant factors.
  • Aggravating factor
    • After delivering your plea of mitigation, the Court will then ask the prosecution for any reasons to give you a harsher punishment
    • Aggravating factors may include;
      • The seriousness of the harm, lack of accused’s lack of remorse, and any other relevant factors.

FILING AN APPEAL

Appeals

  • After the judge or magistrate has pronounced judgment, either the accused or the prosecution may, within 14 days appeal to a higher court.
  • Prosecution’s Appeal
    • The prosecution may appeal against your acquittal.
    • An appeal against conviction means that you were found not guilty. The prosecution will attempt to convince the higher court that you should have been found guilty.
    • In an appeal against sentence, the prosecution will attempt to convince the higher court that you should have received a harsher sentence. Family background, educational qualification, medical history, employment history and relevant factors which gave rise to the offence.
  • Accused’s Appeal
    • The accused may appeal against conviction and/or sentence.
    • In an appeal against conviction, the accused must convince the higher court why the lower court ought not to have found the accused guilty.
    • In an appeal against sentence, the accused will have to satisfy the higher court that the sentence was too harsh and that it ought to be reduced.
    • If the accused pleaded guilty, he does not have the right to appeal his conviction but may still appeal against his sentence.
  • Stay of Execution
    • After sentence is passed, the accused may ask the court to grant a “stay of execution”.  This is essentially a request to postpone the sentence until the appeal is heard and decided.
    • If the accused decides to appeal, he must make an application to the court which passed the sentence for a stay of execution.
    • The filing of an appeal will not automatically operate as a “stay of execution”. Therefore, unless the accused applies for a stay of execution, he will still have to serve his sentence while his appeal is pending. The only exception is whipping. An appeal will automatically stay a sentence of whipping.