Chapter 11 - Pre-Trial Processes

Question 1

PRE-TRIAL PROCESSES

Overview

Answer 1

1) Pre-trial conference
2) Case management
3) Plea bargaining
4) Disposal of case
5) Finality of judgment
6) Use of evidence for other purpose
7) Pleading guilty at any time before trial
8) Letter of Representation

Question 2

PRE-TRIAL CONFERENCE

Overview

Answer 2

1) Effect of PTC

2) Facts agreed by parties

Question 3

PRE-TRIAL CONFERENCE

Effect of PTC

Answer 3

PP v Robert Yee:

• Whatever that was agreed to in a pre-trial conference is binding on the prosecution as well as the defence unless there was material prejudice suffered by the accused.

Question 4

PRE-TRIAL CONFERENCE

Facts agreed by parties

Answer 4

1) The law:
- S.172A(5) + S.172B(6)
2) Effect - Eling Anak Jambun v PP (CA, 2019):
- By virtue section 73AA EA & S.402C, the prosecution need not prove the facts as agreed by the parties under S.172A(5).
3) Non-compliace with S.172(5) - Navin Raj Naidu Gunasegaran v PP:

• The agreement of the prosecution and the defence counsel cannot derogate from the application of S.172A(5);
• If there is non-compliance, S.422 cannot be a cure.
• provisions on the PTC and CM ought to be strictly followed.

Question 5

CASE MANAGEMENT

Overview

Answer 5

1) The law & scope
2) Admission of exhibits
3) Examples of exhibits
4) Setting date for trial

Question 6

CASE MANAGEMENT

The law & scope

Answer 6

S.172B

Question 7

CASE MANAGEMENT

Admission of exhibits

Answer 7

1) The law:

• S.172B(2)(vi)
• Order for discovery: S.51

2) Scope - Naveen Raj Naidu Gunasegaran v PP:

• Admission of exhibits is subject to the consent of the accused and his advocate;
• Agreement between the prosecution & the counsel for the accused is insufficient.
• Wrongful admission of exhibits cannot be cured under S.422.

3) Recent - Melinda Stevenson v PP (CA, 2020):

• Any exhibit to be admitted before the trial must be by consent of the accused and his advocate and agreed to before the commencement of the trial.
• In criminal trial, the procedure as provided under the CPC must be strictly adhered to.
• In the instant appeal, the learned JC allowed a procedure not provided under the CPC upon the request of the learned DPP that is so severe that it severed the chain of evidence.
• Conviction is set aside.

Question 8

CASE MANAGEMENT

Examples of exhibits

Answer 8

1) Notice of alibi:
- S.402A
2) Expert evidence:
- S.399
3) Proof by written statement:
- S.402B

Question 9

CASE MANAGEMENT

Setting date for trial

Answer 9

1) The law:
- S.172B(4): not later than 90 days from the date that the accused being charged.
2) PP v Najib Razak (FC, 2019):
- Appeal against a stay order by CA;

Submission by the PP:

• with the coming into force of s. 172B(4), the previous practice of delaying criminal trials for many years is a thing of the past.
• If trials are statutorily required to commence within three months, granting a stay will defeat this objective.
• Stay of a criminal trial should only be granted on exceptional grounds: that is sparingly so as not to defeat the purposive object of s. 172B(4) of the CPC for trials to start in three months.

Held by FC:

• allowing appeal; setting aside stay order by Court of Appeal; and remitting matter to High Court to proceed with criminal trial.

Question 10

PLEA BARGAINING

Overview

Answer 10

1) The law & scope
2) Duty of court
3) Sentencing & plea bargaining

Question 11

PLEA BARGAINING

The law & scope

Answer 11

1) The law:
- S.172C
2) Scope:

Question 12

PLEA BARGAINING

Duty of court

Answer 12

1) The law:
- S.172B(2)(i).
2) Application - Manimaran Manickam 8 CLJ 439 (CA, 2011)

• The judges & magistrates are strongly advised to record the process of plea bargaining.
• uncertainty as to whether there was an understanding between the prosecution and the defence will lead to a doubt arose as to whether the plea of guilty by the respondent was an unqualified plea or otherwise.

Question 13

PLEA BARGAINING

Sentencing & plea bargaining

Answer 13

1) Whether plea bargain fetter the discretion of the judge to pass sentence - PP v Abdul Malik Abdulah 1 CLJ 1008 (HC, 2013)

• Any agreement as to sentence does not fetter the discretion of the judge in imposing the appropriate sentence based on the circumstances of the case.
• the court does not consider it bound or obliged by the private bargaining between the prosecution and the defence.
• The right to impose punishment on a guilty party is absolutely the discretion of the court.

2) Sentence passed in breach of S.172C - Pendakwa Raya v Yap Sooi Loong:

• Where the plea bargaining is not recorded and conducted pursuant to S.172C, then no plea bargain exists in the eyes of the law.
• Any sentence passed in breach of S.172C is liable to be set aside.

Question 14

DISPOSAL OF CASE

Overview

Answer 14

1) The law & scope

2) Whether discount is automatic

Question 15

DISPOSAL OF CASE

The law

Answer 15

S.172D

Scope:

• Does not apply to offence under S.172D(3).

Question 16

DISPOSAL OF CASE

Whether discount is automatic

Answer 16

Bachik Abdul Rahman v PP:

• This is not a strict rule and the court may, in the exercise of its discretion, refuse to grant any discount.
• The severity of the offence or the existence of a previous conviction may outweigh the mitigating effect of the guilty plea; so may the demands of public interest for a deterrent sentence as well as the absence of a good defence or of other mitigating factors.

Question 17

FINALITY OF THE JUDGMENT

The law & scope

Answer 17

S.172E:

• there shall be no appeal except as to sentence.

Question 18

USE OF EVIDENCE FOR OTHER PURPOSE

The law & scope

Answer 18

S.172F:

• statements made in plea bargain SHALL NOT be used in other purpose except for the application.

Question 19

PLEADING GUILTY AT ANY OTHER TIME BEFORE TRIAL

The law & scope

Answer 19

S.172G:

• Shall be dealt under S.172D.

Question 20

LETTER OF REPRESENTATION

Overview

Answer 20

1) What

2) Purpose

Question 21

LETTER OF REPRESENTATION

What

Answer 21

• Aside the formal plea bargaining process, the accused person through his advocate may pursue with a Letter of Representation to the Public Prosecutor with cogent basis and full facts disclosed.

Question 22

LETTER OF REPRESENTATION

Purpose

Answer 22

• to have charge withdrawn & offer to become a PW in case of joint trial;
• to have charge reduced for a lesser punishment;
• to plead guilty for a lesser charge;
• to plead guilty for one charge & withdraw remaining charges.