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Your KiniGuide to the Criminal Procedure Code amendments

KINIGUIDE After a one-year hiatus, an amendment to the Criminal Procedure Code (CPC) made a reappearance in Parliament last week, and was passed last Thursday.

Totalling 46 pages, the original amendment bill was extensive, but also drew brickbats from both BN and opposition lawmakers.

It was hence withdrawn until the government could come up with improvements, and last week the CPC Amendment Bill 2015 was passed.

In this instalment of KiniGuide, we delve into the newly amended CPC and see what the changes are about.

What is the CPC?

You can think of it as an instruction manual for giving life to your rights under Article 5 of the Federal Constitution – namely the right not to be deprived of life or liberty, except in accordance with the law.

The CPC itself spans more than 300 pages, dealing with how police investigations and arrests are to be made, when a court may or may not offer bail, how courts are conducted, and many more issues.

For example, you may have heard that if you are arrested, you are allowed to contact your friends or family, as well as your lawyer. That’s because Section 28A of the CPC says so.

It is also a very old piece of legislation, originating from Malaysia’s pre-independence days.

Together with its various amendments over the years, it is one of few laws still in force that does not have an official Malay language version. Instead, the authoritative version is available only in the English language.

Is the CPC the only rulebook on these matters?

Not really. For those accused of security offences, the Security Offences (Special Measures) Act 2012 (Sosma) may apply instead, and this provides the police with wider investigative powers.

For example, under the CPC, the police would need the public prosecutor’s permission to intercept communications, which would include, but is not limited to, wiretapping phone conversations.

However, under Sosma, if a security offence is suspected, the police can perform such intercepts in urgent situations, without the public prosecutor’s permission, provided that the public prosecutor is immediately informed afterwards.

So what happened to the CPC?

There were actually three sets of amendments tabled and passed together last week.

The most extensive of these is the Criminal Procedure Code (Amendment) Act 2015, which first made its appearance last year but was subsequently withdrawn after being opposed by MPs on both sides of the political divide.

Also tabled last year and making a reappearance last week, is an amendment to another earlier amendment to the CPC.

Known as the Criminal Procedure Code (Amendment) (No 2) Act 2012, this earlier amendment was passed in 2012, but parts of it are yet to be gazetted into law.

The third and latest was introduced last week, to make changes to the 2015 amendments at the Parliament’s committee stage.

All these were passed by Parliament last Thursday.

What’s in and what’s out in the new CPC?

Here are some of the salient points in the CPC amendments:

  • Concurrent or consecutive jail sentence? Court decides

When the 2015 amendment was tabled, one provision that was opposed by both government and opposition lawmakers pertains to this issue.

At present, when a person has two or more convictions, the court may opt for the jail sentences to either run concurrently or consecutively.

Take for example, if a convict is sentenced to jail for two years and three years for separate offences.

If the court orders for the jail sentences to run concurrently, the convict would only be imprisoned for the longer of the two sentences, which is three years. Courts usually opt for this option.

However, if the court orders for a consecutive jail sentence, the convict will serve one jail sentence after another, totalling to five years.

The 2015 amendment seeks to remove this discretion and make it mandatory for jail sentences to run consecutively, which lawmakers rightly pointed out, would make for very long jail sentences and so they opposed.

With the amendments introduced last week, this provision is removed and the status quo is maintained.

  • Secret witnesses are in

The amendment introduces Section 265A, 265B, and 265C, which allow the prosecution to call for ‘protected witnesses’.

The court is then to hold a hearing behind closed doors to hear the prosecutor’s application, in the absence of the accused or his counsel.

If the court is satisfied that the witness’ identity need to be protected, the witness will be allowed to give evidence in a matter that he cannot be seen by the accused or his counsel, or even be heard if the witness fears that his voice may be recognised.

  • Electronic monitoring devices are here too

These devices were first introduced into Malaysian law under Sosma. It was supposed to be inserted into the CPC too following the 2012 amendment, but the provision was never gazetted and hence never entered into force.

Now, the provision is back with some minor tweaks that specify a form to be signed by those released with the device, and removes an offence related to the tampering or damaging of the device.

The electronic monitoring device is provided as option to the court when releasing accused persons on bail. It may impose the wearing of the device as a bail condition if deemed necessary to ensure that the accused attends court.

  • No accused? No problem

Another part of the 2015 amendment provides that if a person has already been charged, but later absconds his trial, the court is allowed to opt to proceed with the trial.

This is on the condition that the court does not pass the death sentence or life imprisonment in the accused’s absence.

As for the accused, he would be deemed to have waived his right to be present in the trial. In addition, the court may also draw ‘adverse inference’ on the fact that the accused has absconded his trial, meaning this would work against the accused.

  • No leniency for serious crimes, domestic violence

At present, there are several ways a court may convict a person but not pass any sentence against him.

The court may let the convict off with a warning, or put the person on a good behaviour bond.

This takes into consideration of the offender’s age, health, character, the nature of the offence, and whether the person is a first-time offender.

However, with amendments to Section 173A and Section 294 of the CPC, an exception is inserted such that those convicted of serious crimes (those punishable by 10 years’ imprisonment or more) or domestic violence cannot avail these provisions.

In other words, those convicted of a serious crime or of domestic violence must be punished, and will thus be handed a sentence by the court.

  • No bail for you, for you, and you, too

One of the things contained in the CPC is a list that states whether an offence under the Penal Code is bailable or not.

If it is a bailable offence, the court offers bail to the accused by default, although it still has discretion in deciding what conditions to impose.

If it is a non-bailable offence, the court would have discretion on whether to offer the bail or not, unless the accused is believed to have committed a crime punishable with death or life imprisonment.

In keeping with previous amendments to the Penal Code, this list has been extended to include the new offences.

Many of these are non-bailable. These pertain to activities detrimental to parliamentary democracy, terrorism, organised crime, ‘causing hurt by spouse’ and gang rape.

Some existing offences are being changed from bailable to non-bailable too. These include ‘voluntarily causing hurt by dangerous weapons or means’, and mischief.

  • Report… everything?

Section 13(1)(a) of the CPC states that members of the public are to report to the police if they know of a crime that someone intends to commit that is punishable under a specific set of laws under the Penal Code.

The long list of crimes includes offences relating to treason, unlawful assemblies, murder and homicide, kidnapping, prostitution, rape, theft, extortion, robbery, criminal trespass and others.

Under the 2015 amendment passed last week, this long list is substituted with the words “any offence punishable under the Penal Code or any other written law”.

Failure to do so is punishable under Section 176 of the Penal Code, with penalties of up to six months’ imprisonment, a fine of up to RM2,000, or both, depending on the type of information withheld.

  • Gone: An entire chapter on proceeds of organised crime

The 2015 amendment was supposed to introduce a chapter on the proceeds of organised crime into the CPC.

Among others, it provides for the properties and businesses suspected to be part of an organised crime group. The court is to presume that these are indeed illegal property, unless its owner proves otherwise in court.

This chapter has now been deleted.

  • Organised crime experts can be challenged

The 2015 amendment was also supposed to introduce a new provision relating to the expert witnesses’ testimonies on organised crime.

Originally, their testimonies regarding the activities, rituals, insignias and other aspects of organised crime were to be admitted as conclusive evidence in court.

If a person is found to be involved with these activities or behaviours, he would be presumed to be a member of an organised criminal group.

Last week, this provision was amended such as the expert witness’ testimony is treated only as prima facie evidence instead of conclusive evidence.

This means that those accused or their lawyers would have the opportunity to rebut against the expert’s testimony, if called to enter their defence.

  • Federal government gets to keep unclaimed properties

At present, if the police recover stolen property, they should either contact the original owner or publish a public notice for the owner to claim it.

If there is no claim within three months of the publication of the notice, the police may opt to sell the property and the proceeds of the sale would go to the state government of the place where the property was found.

Under the 2015 amendment that has been passed, the proceeds of the sale would go to the federal government instead.

  • Court gets to offer rewards, again

The court is now allowed to reward private citizens up to RM100 for showing ‘unusual courage, diligence, or exertion’ in arresting those involved in crimes punishable by death or imprisonment.

Under the 2015 amendment, the discretion to offer such rewards is to be transferred to ‘the minister’, presumably the minister of home affairs. The sum of the reward is also raised to between RM1,000 to RM10,000.

The opposition had previously charged that this can be used to reward political cronies instead.

Since then, the amendment was changed such that the court retains the power to offer such rewards, instead of the minister, and it gets to keep the increased reward offer.

  • Public prosecutor may appear in some more proceedings

The recent amendments also added two clauses. One allows the public prosecutor to appear in court during remand hearings, where a police officer usually asks a magistrate for approval to detain a person beyond 24 hours to facilitate investigations.

The other provision allows the public prosecutor to also appear in proceedings under Section 98 of the CPC, which allows a magistrate to order any person to refrain from performing acts that are deemed likely to lead to public obstruction, riots, and other nuisance.

And what was that hoo-ha about?

Despite improvements, some members of the opposition are still unsatisfied with the amendments, arguing that it curtails the discretionary powers of the court, especially when it comes to organised crime.

As for Section 98, they pointed out that the provision had been used to restrict peaceful assemblies, such as during Bersih 3.0 and the Perak Crisis.

They complained that now, the public prosecutor also gets involved in the matter.

The provision on protected witnesses also caused alarm, with Shah Alam MP Khalid Samad saying that it would be a ‘downgrade’ for justice and insisted that the accused has a right to know the witness.

Bukit Gelugor MP Ramkarpal Singh said there are already enough laws to deal with accused persons who have absconded, namely to either grant a ‘discharge not amounting to acquittal’, or resume the trial after he has been rearrested.

Asked to comment on the new amendments, lawyer New Sin Yew expressed concern over the appearance of public prosecutors during remand hearings.

He said the investigation process and prosecution should be kept separate to ensure check-and-balance, and the appearance of the public prosecutor in court while investigations are still ongoing will blur this line.

What’s next?

Having being passed by the Dewan Rakyat, the amendments still need to go through several steps before the CPC comes into force.

It would need to be passed by the Dewan Negara next, and then assented by the Yang Dipertuan Agong.

The minister of home affairs may then set a date for the amendments to come into force through a notification in the gazette, at which points it becomes law.

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