Dr Mohd Munzil Muhamad-For Academic Purposes Only

Topic 14: Pre-Trial Processes

Introduction

 Chapter XVIIIA of the CPC deals with the Pre-Trial Processes.

Among the matters cover by this Chapter are Pre-Trial Conference,
Case Management, Plea Bargaining and Disposal of the Case.

 This Chapter has been inserted in the CPC in 2010.

Pre-Trial Conference

 Section 172A of the CPC deals with this matter. Pre-Trial

Conference should take place before the Case Management.

 Section 172A (1) states that it is the accused’s counsel shall

participate the pre-trial conference with the PP.

 The pre-trial conference shall commence within thirty days from

the date the accused was charged in court or any reasonable
time before the commencement of the case management –
Section 172A (2).

 The pre-trial conference may be may be conducted by any means

and at any venue as may be agreed upon by the advocate
representing the accused and the prosecution (anywhere) – Section
172A (3).

 The purposes of conducting the pre-trial conference are stipulated

under s 172A (4) which listed down matters that may be discussed
during the conference according to s 172A(4) are:

(a) identifying the factual and legal issues;

(b) narrowing the issues of contention;
(c) clarifying each party’s position;
(d) ensuring the compliance with section 51A;
(e) discussing the nature of the case for the prosecution and
defence, including any alibi defence that the accused may rely
on;

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(f) discussing any plea bargaining, and reaching any possible

agreement thereto; and
(g) any other matters as may be agreed upon by the advocate
representing the accused and the prosecution that may lead to
the expeditious disposal of the case.

 According to s 172A (5), all matters agreed upon (under s 172A (4)
(g)) in the pre-trial conference by the advocate and the prosecution
shall be reduced into writing and signed by the accused, the
advocate and the prosecution.

***Section 51A of the CPC is an important provision because

documents which would be tendered as part of the evidence for the
prosecution must be delivered to the accused before
commencement of the trial

Issue: In practice how often this pre-trial conference is utilised?

Case Management

 Section 172B provides the step-by-step procedure how it is

conducted.

 The case management shall commence within 60 days from the

date the accused was charged and claimed for trial (s 172B (1)).

 During the case management, a Court must ensure (s 172B (2):

(i) take into consideration all matters that have been considered
and agreed to by the accused and his advocate and the
prosecution during the pre-trial conference including plea
bargaining (decide on the voluntariness).

(ii) where no pre-trial conference has been held on the ground

that the accused is unrepresented, discuss with the accused
and the prosecution any matter which would have been
considered under section 172A.

(iii) assist an accused who is unrepresented to appoint an

advocate to represent the accused;
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(iv) determine the duration of the trial;

(v) subject to subsection (3), fix a date for the commencement of

the trial;

(vi) subject to the consent of the accused and his advocate,

and the prosecution, admit any exhibits; and

(vii) give directions on any other matter as will promote a fair and
expeditious trial.

NAVEEN RAJ NAIDU GUNASEGARAN v. PP & ANOTHER APPEAL

[2015] 3 CLJ 1082

In this case it was agreed between the prosecution and defence counsel
that the presence of the chemist be dispensed with. However, no
evidence that the appellant (accused) consented it. The chemist report
was later admitted by the High Court. Court of Appeal in this case held
that:

[23]…the provisions on the pre-trial conference and case

management as provided under the said sections are provisions
that ought to be strictly followed by the court. Where the language
used in a statute is clear and unambiguous, the meaning must be
accepted by the court. Once the literal meaning has been
established, however inconvenient such meaning may be, it must
receive its full effect (see PP v. Tan Tatt Eek & Other Appeals [2005]
1 CLJ 713; [2005] 2 MLJ 685).

[24]Subsection (5) of s. 172A stipulates that whatever matters

agreed to by the prosecution and the defence must be agreed upon
in writing by the accused. Subsection (2)(vi) of s. 172B provides
that the admission of any exhibits is subject to the consent of the
accused and his advocate while sub-s. (6) states that matters that
have been reduced into writing and signed by the accused, his
advocate and the prosecution under sub-s. 172A(5) shall be
admissible in evidence at the trial of the accused.

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 A subsequent case management, if necessary, may be held not less

than two weeks before the commencement of the trial. Furthermore,
the trial shall commence not later than ninety days from the date of
the accused being charged. (ss 172B (3) and (4)).

 A failure to carry out the case management as provided in

subsection (1) or the trial to commence according to the time period
specified in the subsection (4) would not render the prosecution
against the accused defective, invalid and cannot be considered as
a ground for appeal, review or revision. (s 172B (5).

 Last but not least, s 172B (6) states that notwithstanding the
provisions of the Evidence Act 1950, all matters that have been
reduced into writing and duly signed by the accused, his advocate
and the prosecution under subsection 172A (5) shall be admissible
in evidence at the trial of the accused. (See again the case of
NAVEEN RAJ NAIDU GUNASEGARAN v. PP & ANOTHER
APPEAL [2015] 3 CLJ 1082)

Plea Bargaining

 Section 172C deals with this matter. Prior to the insertion of this
section, plea bargaining is not recognised in Malaysia as a court is
not bound by the private bargaining between PP and the defence.

NEW TUCK SHEN v PUBLIC PROSECUTOR [1982] 1 MLJ 27

This court does not consider it bound by the private bargaining

between the prosecution and the defence in respect of which
bargaining it is not a party and in which it has been judicially
prohibited to participate. The right to impose punishment on a
guilty party is absolutely the discretion of the court.

(See also R v Turner [1970] 2 All ER 281)

 However, there has been a policy shift regarding this matter even in
England which has led Malaysia to introduce s 172C in the CPC
(See also R v Goodyear [2005] 3 All ER 117)

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 The ratio in New Tuck Shen’s case was overruled by the Court of
Appeal in Public Prosecutor v Manimaran a/l Manickam [2011] 6
MLJ 534:

[21] However, we are now of the view that the time has come
for our courts to depart from the decision of New Tuck Shen v
Public Prosecutor in prohibiting the courts from being involved
in plea bargaining. The presiding judge or the magistrate
should be free to indicate the maximum sentence he or she is
minded to impose where the accused person or his counsel
sought an indication of his current view of the sentence which
would be imposed on the accused. But proper guidelines must
be followed. We are proposing the following guidelines:

(a)The request for plea bargaining must come from the

accused person. The application must be made by the accused
person to the public prosecutor. If an application is made to
the court, the court must forward the same to the public
prosecutor. The application may also be made by counsel
representing the accused person. In such situation, counsel
must get a written authority signed by his client that he, the
client, wishes to plea bargain on the sentence. And it is
counsel's duty to ensure that his client fully appreciates that
he should not plead guilty unless he is guilty of the offence.

(b)Once there is a request from the defence, the prosecution

must be quick to react. Both must reach an agreement on the
sentence ie the minimum and the maximum sentence that the
prosecution and defence can accept as the punishment. The
agreement is preferably to be in writing. Once there is an
agreement reached between the defence and the prosecution,
it must be placed before the court. If the court agrees, the
judge or magistrate should indicate his or her agreement to the
parties. And the sentence imposed must be within the range
agreed to between the parties.

(c)However, if the court disagrees with the sentence proposed

by the prosecution and the defence, it must accordingly inform
the parties and indicate the sentence it would be imposing. It is
up to the parties to decide on the next move. If there is no
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agreement, the case should go for trial. The agreement of the

court is vital because in whatever circumstances, the judge
retain the unfettered discretion whether to agree with the
sentence to be imposed or otherwise.

(d)The process of plea bargaining must be done transparently.

It must be recorded and the notes will form as part of the notes
of proceedings.

 Application for plea bargaining must be made to the court where the
offence is tried. Forms and contents of the application are
prescribed under s 172C(2)(a) to (c). Please refer to Form 28A of
the Second Schedule of the CPC.

 Upon receiving the application, the Court shall issue a notice in

writing to the Public Prosecutor and to the accused to appear before
the Court on a date fixed for the hearing of the application (s 172C
(3))

 During the hearing, the Court must determine whether the accused
has made the application voluntarily in camera (in private) e.g in the
Judge’s chambers (s 172C (4)).

 If the Court finds the application is made voluntarily, parties shall

proceed to mutually agree on the satisfactory disposition of the case
(s 172C (5)).

 However, if the application is made involuntarily, the Court shall

dismiss the application and the case to be proceed before another
Court (s 172C (6)).

 When the satisfactory disposition has been agreed between the

accused and the Public Prosecutor, the satisfactory disposition shall
be put into writing and signed by the accused, his advocate if the
accused is represented, and the Public Prosecutor, and the Court
shall give effect to the satisfactory disposition as agreed upon by
the accused and the Public Prosecutor. (s 172C (7)).

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 If no satisfactory disposition, the Court shall record such

observation and the case shall proceed before another Court in
accordance with the provisions of the Code. (i.e proceed with trial)
(s 172C (8)).

 The main duty of the Court is to ensure that the plea-bargaining

process is completed voluntarily by the parties participating in the
plea-bargaining process.

 See the cases below:

(1)Public Prosecutor v Manimaran a/l Manickam [2011] 6 MLJ

534 (CA)

(2)Public Prosecutor v Abdul Malik bin Abdullah [2013] 8 MLJ

251 (HC) (Please take note that the High Court in this case
referred to New Tuck Shen’s case which has been considered
overruled by the Court of Appeal in Manimaran’s case).

(3) Abdul Aziz bin Ibrahim v Public Prosecutor [2022] MLJU

1398- Any punishment imposed by the Court must not be an
illegal sentence which prohibited by the law. In this case, s
294(6) of CPC states that no binding over can be imposed if the
accused is charged for with the commission of an act of domestic
violence as defined under section 2 of the Domestic Violence Act
1994.

Disposal of the Case

 Section 172D of the CPC provides the procedures to follow once

the disposition is agreed upon under plea bargaining process (s
172C).

 Section 172D (1) provides how the Court should dispose the case:

(a) make any order under section 426 (payment of costs of

prosecution and compensation to the victim)

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(b) where the satisfactory disposition is in relation to a plea

bargaining of the charge, find the accused guilty on the charge
agreed upon in the satisfactory disposition and sentence the
accused accordingly; or

(c) where the satisfactory disposition is in relation to a plea

bargaining of the sentence, find the accused guilty on the charge
and—

(i) deal with the accused under section 293 or 294; or

(ii) subject to subsection (2), and (3), sentence the accused to not
more than half of the maximum punishment of imprisonment
provided under the law for the offence for which the accused
has been convicted.

 However, s 172D (3) states that s 172D (1) (c) (ii)- the accused to
not more than half of the maximum punishment of imprisonment
provided under the law for the offence for which the accused has
been convicted would not be applicable if the accused is charged
for offences mentioned under s 172D (3) (a) and (b).

 For example, the accused is charged with a serious offence, any

sexual related offence, any offence committed against a child who is
below twelve years of age, offence punishable with fine only, an
offence for which the punishment provided under the law is
imprisonment for a term of not less than thirty years but not
exceeding forty years or any other offence as may be specified by
the Public Prosecutor by order published in the Gazette.

 Section 172D (4) states that 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. (See
also s 52B of the Penal Code)

Section 172E: Finality of the judgment

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When an accused has pleaded guilty and has been convicted by

the Court under section 172D, there shall be no appeal except to
the extent and legality of the sentence.

 What if there is an issue of voluntariness of the plea

bargaining? Is it appealable?

Section 172F. Statements of, or facts stated by, accused not to be

used for any other purpose.

Notwithstanding anything contained in any law, the statements of

or facts stated by an accused in an application for a plea
bargaining under section 172C shall not be used for any other
purpose except for the making of such application.

 For example, it cannot be used against the accused in the trial

proceeds when the plea-bargaining process is rejected under s
172C (6)- Involuntary. It cannot be used as the accused’s
confession.

Section 172G. Subparagraph 172D(1)(c)(ii) to be applicable to

accused who pleads guilty.

Where an accused pleads guilty at any time before the

commencement of his trial, the Court shall sentence the accused in
accordance with subparagraph 172D(1)(c)(ii).

 This section states that the accused still can enjoy the leniency of
sentence that can be imposed under s 172D (1) (c) (ii) despite there
is no formal application made for plea bargaining under s 172C if
the accused chose to plead guilty before the commencement of
trial.

Letter of Representation

 Before 2010, the informal way of plea bargaining is by sending a

Letter of Representation to the Public Prosecutor for the purpose of:

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(a)To have the charge against the accused withdrawn if

evidence transpired that the accused has a complete
defence to the charge.

(b)To have the charge against the accused withdrawn in return

the accused can act as the prosecution witness.

(c)To reduce the charge for a lesser offence and the accused is
ready and willing to plead guilty for the amended charge.
For example, the offence of murder under s 302 of the Penal
Code to be reduced to s 304 of the Penal Code or s 39B of
DDA 1952 to s 39(A) (2) of the DDA 1952.

(d)For the charge to be discontinue under s 254 of the CPC.

(e)For the accused to plead guilty to one charge and for all
remaining charges or outstanding offence to be taken into
consideration when sentencing as provided under s 171A of
the CPC

(See Public Prosecutor v Ambika a/p MA Shanmugam [2021] 2 MLJ

723 for an example of letter of representation and the reply letter
made by the Public Prosecutor)

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