Pre-Trial Process

BY: MOHAMMAD RIZAL ABIDIN

 Procedure for trial in the CPC is as follows:
1. Chapter XIX for summary trials; and
2. Chapter XX for trials in the High Court

Summary trial procedure is observed in the

Magistrate and also Sessions Court. They are generally
similar to High Court trials except for some
differences.

Main provisions for summary trial are given in section

173(a) to (o) CPC.
 These processes are:
1. Pre-Trial Conference section 172A CPC
2. Case Management section 172B CPC

Objectives:
1. Shorten trial period;
2. Expedite the disposal of the trial;
3. Delivery of certain documents section 51A CPC;
4. Pre-recording of evidence of witnesses who cant
attend trial section 396 CPC.
Section 172A CPC states:
1. Accused with his lawyer representing him shall participate
in a PTC with the prosecution before case management.
2. PTC must be conducted within 30 days from the date
accused charged or any reasonable time before case
management.
3. PTC may be conducted by any means and at any venue
agreed upon between parties.
4. Parties in a PTC may discuss the following matters:
a. Identify factual and legal issues;
b. Narrowing issues of contention;
 c. Clarifying each partys position;
d. Ensuring compliance with section 51A;
e. Discussing nature of prosecution and defence case
including alibi;
f. Discuss plea bargaining; and
g. Any other matter that may lead to the expeditious disposal
of the case.

5. Matters agreed in PTC shall be reduced into writing and

signed by accused, lawyer and prosecution.
Section 172B CPC states:
1. Court shall conduct CM within 60 days after accused
charged.
2. Court shall consider:
a. All matters agreed by parties during PTC;
b. If no PTC because accused is unrepresented, discuss with
accused and prosecution matters under section 172A;
c. Assist unrepresented accused to appoint a lawyer;
d. Determine the duration of the trial;
e. Fix a date for the trial;
f. Admit any exhibits subject to the consent of the accused
and prosecution; and
g. Give directions on any other matter that will promote a fair
and expeditious trial.
3. A subsequent CM, if necessary, may be held not less than 2
weeks before trial.
4. Trial shall commence not later than 90 days after accused
charged.
5. Failure to conduct CM or trial within the specified duration
shall not render charge or prosecution defective nor
grounds for appeal, review or revision.
6. Notwithstanding the EA 1950, all matters agreed upon and
reduced in writing signed by parties under section 172A
(5) CPC shall be admissible as evidence at the trial.
 Section 51A(1) CPC requires prosecution to deliver to the
accused these documents before the trial:
1. A copy of the information made under section 107 CPC;
2. A copy of any document which prosecution would tendered
as evidence;
3. A written signed statement of facts favorable to the accused,
if not contrary to public interest (see section 51A(2) CPC).

A document shall not be inadmissible merely because of

non-compliance with section 51A CPC (see section 51(3)
CPC).
 If delivery made after commencement of trial was
deliberate and in bad faith, court may exclude the document
(see section 51A(4) CPC).

If delivery was late, court shall allow accused:

1. A reasonable time to study the document; and
2. To recall or re-summon and examine any witness in relation
to the document (see section 51(5) CPC).
 Section 396 CPC: Empowers court, on application of the PP,
to record evidence of a person before trial if:
1. Attendance of that person cannot be procured without an
amount of delay or expense deemed unreasonable;
2. The person may become incapable of giving evidence.

Court shall record evidence of the person under oath

subject to that person being examined in accordance with
the EA 1950 and the evidence shall be reduced into writing.

The evidence shall be admissible at any proceedings and

the weight attached shall be the same as that of a witness
who appears and give evidence in the trial.
 PB is an agreement between prosecution and accused
where accused pleads guilty in exchange for:
1. A lesser charge or to one of multiple charges and dismissal
of the other charges; or
2. A more lenient sentence manifested in the recommendation
by the prosecution.

It is a departure from a decision in New Tuck Shen v

Public Prosecutor [1982] 1 MLJ 27, where courts were
prohibited from being involved in PB.
Section 172C CPC states:
1. Accused charged with an offence and claims to be tried
may make an application for PB in the court in which the
offence is to be tried.
2. Application in (1) shall be in Form 28A of the 2nd Schedule
CPC.
3. Upon receiving application under (1) court shall issue
notice in writing to PP and accused to appear before the
court on a fixed date for hearing of the application.
4. In the hearing court shall examine the accused in camera:
a. Without PP if accused is unrepresented; or
b. With PP and lawyer if accused is represented.
5. If court is satisfied that the application is voluntary, PP and
accused shall mutually agree upon a satisfactory
disposition of the case.
6. If court opines that application is not voluntary, court shall
dismiss the application and the case shall proceed before
another court.
7. Satisfactory disposition of the case shall be in writing and
signed by the accused, his lawyer and PP and the court
shall give effect to the satisfactory disposition.
8. If no satisfactory disposition, court shall record such
observation and the case shall proceed before another
court.
9. It is courts duty to ensure that PB process is completed
voluntarily by the parties.

Application for PB must be set out in accordance with

Form 28A of the 2nd Schedule and should contain:
1. A brief description of the offence;
2. Declaration by accused that the application is voluntary,
after understanding the nature and extent of the
punishment provided under the law; and
3. Information whether PB is applied for is in respect of the
charge or sentence.
 COA in Public Prosecutor v Manimaran Manickam [2011] 6
MLJ 534, proposed these guidelines for PB:
1. Request for PB must come from accused made to the PP and if
made to the court it must be forwarded to PP ;
2. If made by counsel representing the accused, written authority
signed by accused is required;
3. Prosecution must react quickly and both parties must reach an
agreement preferably in writing.
4. Agreement should be brought before the court who, if it so
agrees, would impose sentence that comes within the range
agreed by parties;
5. If court disagrees with sentence proposed, inform the parties and
up to the parties to decide on the next move; and
6. The process must be done transparently and must be recorded
and form part of the notes of proceedings.
 Under section 172C(6) and (8) CPC if court finds
application not made voluntarily or the accused and
prosecution cannot come to a satisfactory disposition,
the case shall proceed to trial in another court so as not
to prejudice the accused.
 Section 172D CPC: Where satisfactory disposition of the
case has been agreed upon, court shall dispose the case in
the following manner:
1. Court shall:
a. Make any order under section 426 CPC (payment of cost of
prosecution or compensation to the victim);
b. If PB is on the charge, convict accused on the charge agreed
upon and sentence accordingly;
c. If PB is on the sentence, convict accused on the charge and:
i. Deal with accused under section 293 (youthful offender) or
294 (first offenders) CPC; or
ii. Subject to (2) and (3), sentence accused to not more than
half of the maximum punishment of imprisonment provided
by law.
2. If theres a minimum term of imprisonment provided under the
law, accused cannot be sentenced to a lesser term than the
minimum;
3. Subpara (1)(c)(ii) will not apply where:
a. In the case of a serious offence, accused has previous
conviction for a related or same offence; or
b. The offence is one which falls within the following:
i. An offence punishable with fine only;
ii. An offence punishable with imprisonment for natural
life;
iii. Any sexual related offence;
iv. Any offence committed against a child below 12
years;
v. Any other offence as may be specified by PP by
order published in the Gazzete.
4. Serious offence in para 3(a) means an offence where the maximum
term of imprisonment is not less than 10 years, and includes any
attempt or abetment to commit such offence.
 Section 172E CPC: Where accused has pleaded guilty
and has been convicted by the court under section
172D CPC, there shall be no appeal except on the
extent and legality of the sentence.
THE END