AMENDMENTS TO CPC SINCE 2008

▪ Criminal Procedure Code (Amendment)

Act 2009 [A1350]
▪ cif 01.05.2009
▪ Criminal Procedure Code (Amendment)
Act 2010 [A1378]
▪ cif 01.06.2012
▪ Criminal Procedure Code (Amendment)
Act 2010 (Amendment) Act 2012 [A1422]
▪ cif 01.06.2012
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 AMENDMENTS TO CPC SINCE 2008

▪ Criminal Procedure Code (Amendment)

Act 2012 [A1423]
▪ cif 01.06.2012
▪ Criminal Procedure Code (Amendment)
Act 2012 [A1431]
▪ E-gazetted 22.06.2012

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 AMENDMENTS TO CPC SINCE 2008
▪ Criminal Procedure Code (Amendment) Act 2009
▪ Chapter XXV relates to mode of taking and recording
evidence in inquiries and trials.
▪ The amendments insert ss 272C – 272K.
▪ The new provisions set out the procedure and
manner evidence may be taken by electronic means.
▪ By the amendments too, the CJ may, where
necessary, issue Practice Directions relating to the
use of mechanical means and nay matter relating to
it.

3
 AMENDMENTS TO CPC SINCE 2008
▪ Criminal Procedure Code (Amendment)
Act 2010 [A1378]; Criminal Procedure
Code (Amendment) Act (Amendment) Act
2012 [A1422]
▪ The amendments came in the spirit of
resolving the backlog of cases and promoting
speedy trials.
▪ The principal changes are –

4
AMENDMENTS TO CPC SINCE 2008
➢Pre-Trial conference – s 172A
➢Case management – s 172B
➢Plea Bargaining – s 172C
➢Victim’s or family impact statement – s
173(m)(ii)/s 183A
➢Lesser restriction for alibi – s 402A
➢Proof by written statement – s 402B
➢Proof by formal admission – s 402C
➢Disposal of seized exhibits – s 407A
➢Order for payment of costs of prosecution – s
426
5
 Pre-trial conference – s 172A CPC
◼ S 172A CPC sets out the steps to be taken in
pre-trial conference (PTC) by the prosecution
and the defence before the commencement of
case management.
◼ PTC is mandatory only when the accused (A)
claims trial and he is represented by an
advocate – s 172A (1) CPC
◼ PTC must commence within 30 days from the
date A was charged in court or any reasonable
time before the commencement of case
management – s 172A(2) CPC
6
 Pre-trial conference – s 172A CPC
◼ PTC may be conducted by any means and at
any venue as may be agreed upon by the
advocate and the prosecution – s 172A(3)
◼ During PTC, the advocate may discuss with the
prosecution the following matters relating to the
case – s 172A(4) (a)-(g) CPC
➢ identifying the factual and legal issues;
➢ narrowing the issues of contention;
➢ clarifying each party's position;
➢ ensuring the compliance with section 51A;

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Pre-trial conference – s 172A CPC
➢ discussing the nature of the case for the prosecution
and defence, including any alibi defence that the
accused may rely on;
➢ discussing any plea bargaining, and reaching any
possible agreement thereto; and
➢ 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.
◼ All matters agreed upon in PTC by the advocate
and the prosecution shall be reduced into writing
and signed by A, the advocate and the
prosecution – s 172A(5) CPC 8
 Criminal Procedure Code
(Amendment) Act 2010
▪ Pre-trial conference
▪ Only applicable where there is counsel. Court
not involved
▪ 30 days after being charged or a reasonable
time before case management
▪ Can be conducted at any venue and by any
means.

9
◼ What Can Be Discussed?
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 defense, including any alibi
defense that the accused may rely on
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 Public
Prosecutor that may lead to the expeditious
disposal of the case – Section 73AA Evidence Act
h) Formulation of “pre-trial agreement”
10
 Case management – s 172B CPC
◼ S 172B CPC deals with pre-trial as well as trial
issues.
◼ For example, at case management stage, s
172B permits the court to admit exhibits to be
marked for the purpose of trial, provided the
parties consent to it.
◼ S 172A(5) also gives wide discretion for parties
to agree to various issues at PTC and if it is in
writing it will be admissible in evidence.
◼ This is a factor which the court at case
management stage is obliged to consider.
. 11
 Case management – s 172B CPC
◼ The section envisages that case management is
to commence after PTC.
◼ However, there is nothing prohibiting the court
to give some partial case management
directions the moment A is charged such as
fixing the hearing date for trial or to appoint an
advocate for A if he is not represented.
◼ This is to give directions towards promoting a
fair and expeditious trial.

. 12
 Case management – s 172B CPC
◼ A Magistrate, Sessions Court Judge or Judge of the
High Court (the Court) must commence a case
management process within 60 days from the date of
A being charged and claims to be tried – s 172B(1)
CPC
◼ At case management, the Court must – s 172B(2)(i)-
(vii) CPC
– take into consideration all matters that have been
considered and agreed to by A and his advocate and the
prosecution during PTC; and where a plea bargaining (PB)
has been agreed between A and his advocate and the
prosecution during PTC, the Court must decide on the
voluntariness of A in PB according to the provisions of s
172C; . 13
Case management – s 172B CPC
– where no PTC has been held on the ground that A is
unrepresented, discuss with A and the prosecution
any matter which would have been considered under
s 172A;
– Assist A who is unrepresented to appoint an
advocate to represent the accused;
– determine the duration of the trial;
– subject to subs (3), fix a date for the commencement
of the trial;
– subject to the consent of A and his advocate, and the
prosecution, admit any exhibits; and
– give directions on any other matter as will promote a
fair and expeditious trial. . 14
 Case management – s 172B CPC
◼ A subsequent case management, if necessary, may
be held not less than 2 weeks before the
commencement of the trial – 172B(3) CPC
◼ The trial shall commence not later than 90 days
from the date of the accused being charged – s
172B(4) CPC
◼ A failure for the case management or the trial to
commence according to the time period specified in
the subss (1) and (4) shall not – s 172B(5) CPC
➢ render the charge or prosecution against A as defective
or invalid; or
➢ be considered as a ground for appeal, review or revision.
. 15
Case management – s 172B CPC
◼ Notwithstanding the provisions of the Evidence
Act 1950, all matters that have been reduced
into writing and duly signed by A, his advocate
and the prosecution under subsection 172A(5)
shall be admissible in evidence at the trial of
the accused – s 172B(6) CPC

. 16
 CASE MANAGEMENT - S.172B

▪ Involves the court, counsel and

prosecutor
▪ Within 60 days of accused being charged
and a 2nd case management not less than
2 weeks before trial
▪ The Court shall:
a) take into consideration the “pre-trial
agreement”
cont…
17
b) Where no pre-trial conference has been held
on the ground that the accused is
unrepresented, discuss with the accused and
the Public Prosecutor any matter which would
have been considered under section 172A;
c) Assist an accused who is unrepresented to
appoint an advocate to represent the accused;
d) Determine the duration of the trial;
cont…

18
e) Subject to subsection (3), fix a date for
the commencement of the trial; and
f) Give directions on any other matter as
will promote a fair and expeditious trial
▪ Trial to commence within 90 days of
charging
▪ All matters in the pre-trial agreement
would be used as evidence
notwithstanding Evidence Act 1950

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 Plea bargaining – s 172C CPC
◼ Plea bargaining (PB) is the process whereby A
and the prosecutor work out a mutually
satisfactory disposition of the case subject to
court approval .
◼ PB usually involves A pleading guilty to a lesser
offence or to only one or some of the charges in
a multiple charge in return for a lighter
sentence or dismissal of the other charges.

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 Plea bargaining – s 172C CPC
◼ PB “is an agreement in a criminal case in which a
prosecutor and an accused arrange to settle the case
against the accused. The defendant agrees to plead
guilty or no contest in exchange for some concession
from the prosecutor. This concession can include
reducing the original charge or charges, dismissing
some of the charges against the defendant or
limiting the punishment a court can impose on the
defendant. Generally, a plea bargain allows the
parties to agree on the outcome and settle the
pending charge.”
– Mahendra Singh Adil, Plea Bargaining: Concept & Precept
(2007, p 5) 21
 Plea bargaining – s 172C CPC
◼ In summary, PB is an agreement to settle the
case before the trial.
◼ In effect, it is a deal offered by the prosecution
as an incentive for A to plead guilty (PG).
◼ There are 2 types of PB –
– Charge reduction
▪ where A and the prosecutor agree that A should be allowed
to PG to a less serious charge
– Sentence reduction
▪ where A PG to the original charge in exchange for a reduced
sentence

22
 Plea bargaining – s 172C CPC
◼ Plea bargaining (PB) is implicitly practised in
Malaysia where if A pleads guilty at the earliest
possible stage, the court will take that into
account as a mitigating factor before passing
sentence.
◼ The introduction of s 172C CPC provides for a
statutory basis for PB.
◼ Be that as it may, our courts have recognised
the need for PB.
– PP v Hisla Sulai [2008] 10 CLJ 281
– PP v Hamidon bin Ahmad Mokri [2010] 8 MLJ 563
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 Plea bargaining – s 172C CPC
◼ Pre-amendment
– New Tuck Shen v PP [1982] 1 MLJ 27
– PP v Karthiselvam a/l Vengatan [2011] 4 MLJ 212
◼ Post-amendment
– PP v Manimaran a/l Manickam [2011] 6 MLJ 534
◼ Further reading
– ‘Plea Bargaining: The Underlying Rationale And The
Malaysian Experience’ [2005] 5 MLJ xlii

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 Plea bargaining – s 172C CPC
◼ If A claims trial, he may make an application for PB
– s 172C(1) CPC
◼ The application must be in Form 28A of the Second
Schedule and must contain – s 172C(2)(a)-(c) CPC
➢ a brief description of the offence that the A is charged
with;
➢ a declaration by A stating that the application is
voluntarily made by him after understanding the nature
and extent of the punishment provided under the law for
the offence that A is charged with; and
➢ information as to whether PB applied for is in respect of
the sentence or the charge for the offence that the
accused is charged with.
25
 Plea bargaining – s 172C CPC
◼ Upon receiving an application for PB, the Court shall
issue a notice in writing to the Public Prosecutor
(PP) and to A to appear before the Court on a date
fixed for the hearing of the application – s 172C(3)
CPC
◼ When the PP and A appear on the date fixed for the
hearing of the application , the Court shall examine
the accused in camera – s172(4)(a)-(b) CPC
➢ where A, in the absence of the PP; or
➢ where A is represented by an advocate, in the presence of
his advocate and the PP,
as to whether the accused has made the application
voluntarily. 26
 Plea bargaining – s 172C CPC
◼ Upon the Court being satisfied that A has made
the application voluntarily, the PP and A must
proceed to mutually agree upon a satisfactory
disposition of the case – s 172C(5) CPC
◼ If the Court is of the opinion that the application
is made involuntarily by A, the Court shall
dismiss the application and the case shall
proceed before another Court in accordance
with the provisions of the CPC – s 172C(6) CPC

27
 Plea bargaining – s 172C CPC
◼ Where a satisfactory disposition of the case has
been agreed upon by A and the PP, the satisfactory
disposition shall be put into writing and signed by
A, his advocate if A is represented, and the PP, and
the Court shall give effect to the satisfactory
disposition as agreed upon by A and the PP – s
172C(7) CPC
◼ In the event that no satisfactory disposition has
been agreed upon by A and the PP, the Court shall
record such observation and the case shall proceed
before another Court in accordance with the
provisions of the CPC – s 172C(8) CPC
28
 Plea bargaining – s 172C CPC
◼ In working out a satisfactory disposition of the
case under subs (5), it is the duty of the Court
to ensure that the PB process is completed
voluntarily by the parties – s 172C(9) CPC

29
 Disposal of case – s 172D CPC
◼ Where a satisfactory disposition of the case has
been agreed upon by A and the PP under s
172C, the Court shall, in accordance with law,
dispose of the case in the following manner – s
172D(1)(a)-(c) CPC
➢ make any order under s 426; and
➢ where the satisfactory disposition is in relation to PB
of the charge, find A guilty on the charge agreed
upon in the satisfactory disposition and sentence A
accordingly; or

30
 Disposal of case – s 172D CPC
➢ where the satisfactory disposition is in relation to PB
of the sentence, find A guilty on the charge and-
➢ deal with A under s 293 or 294; or
➢ subject to subs (2) and (3), sentence A to not more than
half of the maximum punishment of imprisonment provided
under the law for the offence for which A has been
convicted.
◼ Where there is a minimum term of
imprisonment provided under the law for the
offence, A shall not be sentenced to a lesser
term of imprisonment than that of the minimum
term – s 172D(2) CPC
31
 Disposal of case – s 172D CPC
◼ Subpara (1)(c)(ii) shall not apply where – s 172D(3)
CPC
➢ in the case of a serious offence, A has a previous
conviction for a related or same offence; or
➢ where the offence for which A is charged with falls within
the following:
▪ an offence for which the punishment provided under the law is fine
only;
▪ an offence for which the punishment provided under the law is
imprisonment for natural life;
▪ any sexual related offence;
▪ any offence committed against a child who is below twelve years of
age; or
▪ any other offence as may be specified by the PP by order published
in the Gazette.
32
 Disposal of case – s 172D CPC
◼ 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 10 years, and includes any
attempt or abetment to commit such offence – s
172D(4) CPC

33
 Plea-bargaining (s.172C)
Pre amendment
◼ Courts do not entertain plea-bargaining between the
parties-PP v. Hisla Sulai (M) (2008) 10 CLJ 597
◼ The courts are judicially prohibited to participate in plea
bargaining. They are not bound by the private
bargaining
between the prosecution and the defense
New Tuck Shen v. PP (1982) CLJ 38.

Post Amendment
▪ PP v Manimaran a/l Manickam (2011) CLJ 38.
▪ S. 172 C CPC 34
MANIMARAN GUDELINES

(i) the request for plea bargaining must be made by the accused person to
the Public Prosecutor and if the application is made to the court, the court
must forward same
to the Public Prosecutor;

(ii) if the application is made by counsel representing the accused, he must

get a written authority signed by his client affirming that the client wishes to
plea bargain on the sentence;

(iii) the prosecution must quickly react to the request, and both parties must
reach an agreement, preferably in writing, on the sentence (the minimum and
maximum acceptable to them);

(iv) the agreement should be placed before the court who, if it so agrees,
would impose a sentence that comes within the range as agreed to by the
parties;

(v) if the court disagrees with the sentence proposed, it must so inform the
parties, and it is up to the parties to decide on the next move; and

(vi) 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 35
 PLEA BARGAINING
SALIENT FEATURES
1) Accused may make the application at the trial court
under Form 28A of second schedule
2) All offences except those specified in Section 172 D (3)
3) Application must be made voluntarily
4) The complainant and the accused are given time to
work out a satisfactory disposition
5) Court must ensure that the application and the
satisfactory disposition were reached voluntarily
6) Can be made at any time

36
 DISPOSAL OF THE CASE

7) Where satisfactory disposition had been

reached court shall give effect to the
satisfactory disposition
8) If disposition in relation to charge
-make any order under section 426 and
-sentence the accused accordingly
cont…

37
 DISPOSAL OF THE CASE

9) If disposition in relation to sentence

-make any order under section 426 and
-deal with accused under s. 293 or 294 or
-sentence accused to half the maximum term
of imprisonment

38
 Pros
1. Savings of public funds and time.
2. Reduce backlogs.
3. Reduce congestion in prisons.
4. Cases “disposed”
5. Win-win situation.

39
 Cons
1. Unfair to victims.
2. “Fettering” the discretion of the courts.
3. “Purchasing” justice.
4. Justice hurried is justice denied
5. Inducing those who are not guilty to plea
guilty “to get it all over with”

40
 FAQ’S
◼ a) can the accused make an application
after the trial commenced?
◼ b) can the accused make more than one
application to plea bargain?
◼ c) is the court bound by the “satisfactory
disposition”
◼ d) can the parties suggest a sentence to
the court (if so is the court bound by it ?)
◼ e) is the witness impact statement
applicable in plea bargaining? 41
 Alibi – s 402A CPC
◼ Pre amendment
– Where A sought to forward a defence of alibi,
evidence in support would not be admissible unless A
had given a written notice to PP at least 10 days
before commencement of the trial.
– Vasan Singh v PP [1989] 1 CLJ (Rep)166 SC
– Baljit Singh Sidhu, Criminal Litigation Process (2nd
edn Sweet & Maxwell, Kuala Lumpur 2011) pp 326-
330

42
 Alibi – s 402A CPC
◼ Post-amendment
– The Court shall, at the time A is being charged,
inform A as to his right to put forward a defence of
alibi – s 402A(1) CPC
– Where A seeks to put forward a defence of alibi, he
shall put forward a notice of his alibi during the case
management process – s 402A(2) CPC
– Notwithstanding subs (2), where A has not put
forward a notice of his alibi during the case
management process, he may adduce evidence in
support of an alibi at any time during the trial subject
to the following conditions – s 402A(3)(a)(b) CPC
43
 Alibi – s 402A CPC
◼ Post-amendment
➢ the accused has given a written notice of the alibi to the
Public Prosecutor; and
➢ the Public Prosecutor is given a reasonable time to
investigate the alibi before such evidence can be adduced.
– The notice shall include particulars of the place
where A claims to have been at the time of the
commission of the offence with which he is charged,
together with the names and addresses of any
witnesses whom he intends to call for the purpose of
establishing his alibi – s 402A(4) CPC

44
 Alibi (s 402A)
◼ Pre amendment
◼ Defence must give notice 10 days before
commencement of trial
◼ Defence not admissible unless such notice
given. PP v Chee Chi Tiam (1982) 1 MLJ
88.

45
ALIBI – s 402A
After Amendment
▪ Court to inform accused of right to alibi defense
▪ Notice of alibi to be forward at case management
stage
▪ If not, can be put at anytime during the trial provided:

i. Written notice had been given to the prosecutor

ii. The prosecutor had been given reasonable time to
investigate the alibi

▪ What should the notice of alibi contain?

46
 Victim’s or member of his family’s
impact statement (s.183A)
Pre amendment
◼ The victim or his family were not given the
opportunity to participate in the
sentencing process
◼ The court was informed on the condition
of the victim through the prosecutor
◼ In contrast it was normal for the accused
to address the court personally during
mitigation 47
 VICTIM OR FAMILY IMPACT
STATEMENT - S.183A
a) Applies to all offence upon request
b) Mandatory for the court to require such a
statement
c) Victim or family makes a statement on
the impact of the offence on the victim or
the family
d) Written statement allowed if attendance
not possible

48
 Proof by written statements
S.402B
Pre amendment
Evidence of witnesses were given in court
orally
◼ Statements of witnesses which were
admitted under S.32 of the Evidence Act
1950 and S.399 of the CPC were
admissible.
◼ There were no statements of agreed and
admitted facts by the parties
49
 PROOF BY WRITTEN STATEMENT

Post Amendment
▪ Applies to both prosecution and defense
▪ Written statement can be admissible during trial
with consent of parties
▪ Statement is in lieu of examination in chief
▪ To be served by the party wishing to advice it 14
days before commencement of the trial
▪ Party adducing the statement can call the maker
to give additional evidence
▪ Any object or document referred to in the
statement is treated as an exhibit tendered in
the course of the trial
▪ Statement read aloud in court
50
 PROOF BY FORMAL ADMISSION -
S.402C
▪ Both the prosecution and accused can
agree upon certain facts to be adduced at
the trial
▪ The “pre trial agreement” can contain
such admitted facts so as to narrow down
issues
▪ Facts admitted must be in writing and
signed by both parties
▪ Section 73AA Evidence Act 1950
51
DISPOSAL OF SEIZED ARTICLES
– S.407A
Pre amendment
▪ Exhibits in connection with the offence
generally had to be produced in court
▪ There was no provision for pre trial
disposal of exhibits
▪ Chain of evidence had to be intact

52
 DISPOSAL OF SEIZED ARTICLES –
▪ Prosecution to apply for disposal of articles
after case management and before trial
▪ Order of disposal can be made provided:
a) Inventory made and certified by magistrate
b) Photographs taken and certified by magistrate
c) Where possible representative samples taken in
presence of magistrate and certified by him
d) Videos, compact disc have to be viewed by
magistrate and certified as to contents
e) Court can allow defence to take photo’s of the
exhibits
53
 ORDER FOR PAYMENT OF COSTS OF
PROSECUTION AND COMPENSATION –
S.426
Pre amendment
◼ Court may order either or both
a) payment by the accused of the prosecution
cost.

b) compensation to any person or his

representative regarding injury to person,
character or income property.

54
 ORDER FOR PAYMENT OF COSTS OF
PROSECUTION AND COMPENSATION
Post amendment
▪ Court may order the accused to pay cost of his
prosecution or part thereof,
▪ the court shall order compensation if prosecution
involves MACMA 2002 or accused had obtained
pecuniary gain
▪ The court shall order compensation to the victim on
the application of the prosecutor
▪ Compensation could also include loss of income or
property , injury to person or character
▪ Court may hold an inquiry to determine order for
compensation
cont… 55
a) The nature of the offence
b) The injury sustained by the victim
c) The expenses incurred by the victim
d) The damage to or loss of property
suffered by the victim
e) The loss of income incurred by the victim
f) The ability of the convicted accused to
pay; and
g) Any other factors which the Court deems
relevant
56