The Court of Appeal today ruled that judges and magistrates can be involved in a plea bargaining process by indicating the maximum sentence they are minded to impose when an accused person seeks the range of sentence.
Court of Appeal President Md Raus Sharif said the court’s agreement on the sentence was vital because, whatever the circumstances, the judge retained the unfettered discretion whether to agree with the sentence to be imposed or otherwise.
In an unprecedented decision, Justice Raus said the time had come for Malaysian courts to depart from the judgment of a case law, New Tuck Shen vs Public Prosecutor, which prohibited the courts from giving an indication on the sentence that it was minded to impose in a plea bargaining process.
He strongly advised judges and magistrates to record exactly what transpired before them in the process of plea bargaining, saying that the notes recorded by the judge or magistrate would then form a part of the notes of the proceedings.
He also reminded the prosecution not to leave the difficult area of sentencing only to the court, saying the deputy public prosecutors should instead assist by producing authorities to back their request for a deterrent sentence and they must show the trend of sentencing in similar cases.
Raus has laid down a proposed guideline on plea bargaining in his judgment in the drug case of a air-con repairman M. Manimaran. He said the process of plea bargaining must be done transparently.
Parliament approved the plea bargaining system by incorporating it in the amended Criminal Procedure Code but it has yet to be gazetted. The system would assist in controlling backlog cases and an accused person who pleads guilty to
the charge would enjoy a 50 per cent reduction of the maximum punishment.
In his 16-page judgment, Raus said the accused person must make the request for plea bargaining to the public prosecutor and the prosecution must be quick to react on a request of plea bargaining from the defence.
“Both must reach an agreement on the sentence, i.e. the minimum and the maximum sentence that the prosecution and defence can accept as the punishment.
The agreement should preferably be in writing,” he said.
Raus said: “Once there is an agreement 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.”
Raus, however, said that if the court disagreed with the sentence proposed by the prosecution and the defence, it must inform the parties and indicate the sentence it would be imposing.
“It is then up to the parties to decide on the next move. If there is no agreement, the case should go for trial,” he said.
Raus said that if an accused person makes an application for plea bargaining, the court must then forward the application to the public prosecutor.
He said the accused person could also make the application through his counsel who must get a written authority from his client of his wish to plea bargain on the sentence.
He said it was the counsel’s duty to ensure that his client fully appreciates that he should not plead guilty unless he is guilty of the offence.
In Manimaran’s case, a three-man panel comprising Raus and Court of Appeal judges Abu Samah Nordin and Sulong Matjeraie unanimously reverted his case back to the Shah Alam High Court for trial on the original charge of trafficking in 420 grammes of cannabis at a flat in Sungai Buloh on Aug 10, 2009.
This is because, Raus said, there was nothing in the notes of proceedings indicating that a plea bargaining process took place between the prosecution and the defence on the sentence.
High Court judge Mohd Yazid Mustafa sentenced Manimaran, 30, to six years jail and ordered him to be given 10 strokes of the rotan. Unhappy with the sentence, the prosecution lodged an appeal to the appellate court.
There was a dispute as to the circumstances that led to Manimaran pleading guilty to the amended charge of drug possession where he claimed that he had pleaded guilty to the amended charge on the understanding that the sentence
imposed would be six years jail but such understanding was disputed by the prosecution.
Raus said that since there was no recording of the plea-bargaining process in Manimaran’s case, the court with regret could not sanction the so-called plea bargaining in respect of the sentence that was alleged to have taken place.
Manimaran was represented by lawyers Rajpal Singh and Amrit Pal Singh while deputy public prosecutor Manoj Kurup appeared for the prosecution.