Pre-Trial Process TheintroductionofSec172Cprovidesa

statutorybasisforPB

Section172C(1)
The application for PB be made in court
Plea Bargaining which the offence is to be tried when an
accusedischargedwithanoffenceandclaims
Definition tobetried.

BlacksLawDictionary
A process whereby the accused and the
prosecutor in a criminal case, work out a
mutually satisfactory disposition of the case
subjecttocourtapproval.
OtherDefinition
ItisadealofferedbytheProsecutorasan
incentivefortheAccusedtopleadguilty.PG
was made in return and under reasonable
expectation of some concession from
Prosecutor.
Pre-Amendment
PB is already been in practice between
ProsecutorandDefenceCounsel
NewTuckShen[1982]HC
Following common law position, Court are
judiciallyprohibitedtoparticipateinPBand
notboundbyit.
Post-Amendment
DeparturefromNewTuckShenasnowthe
CourtcanparticipateinthePBprocess.
PPvManimaranManickam[2011]8
CLJ439
RaufSharifFCJ:"Thetimehascomeforour
courtstodepartfrom NewTuckShenv.PP.
Consequently, and subject to proper
guidelines, the presiding judge or
magistrate should now be free to indicate
the maximum sentence he is minded to
impose where the accused person or his
counsel sought an indication of his current
viewofthesentencewhichwouldbeimposed
ontheaccused."

CourtshaverecognizedtheneedforPB

PPvHislaSulai[2008]10CLJ381
OurcourtsshouldreadilyentertainPB,subject
totheguidelinessetoutin RvTurner asit
will allow the matters to be disposed of
expeditiouslyandtheappellatecourtswillnot
beunnecessarilyburdenedwithappeals.

Amendment in 2010
FarahFarhanaHassan
 Common Law Position
Courts are judicially prohibited to
participateinPB.
RvTurner
Thecourtdoesnotconsideritboundbythe
private bargaining between the prosecution
andthedefenceinrespectofwhichitisnota
party and in which it has been judicially
prohibitedtoparticipate.
RvAtkinson
PBhasnoplaceintheEnglishcriminallaw.It
isfoundinsomesystemsoflawinwhichthe
prosecutionareentitledtomakesubmissions
astothecharacterorlengthofthesentence.
In such system of law, it is possible for a
bargaintobedrivenbetweenthedefenceand
the prosecution, but never, with the Court
itself.
However, over the years, public policy
hasshiftedtowardsacceptingPB.
RvGoodyear[2005]
overruledthe practice inR vTurnerwhich
stated that the trial judge cannot give an
indicationastosentence.
Thedefencecannowrequestinwritingan
indication from the judge of their likely
sentenceiftheypleadguilty.Thisindicationis
binding.
McKinnonvGovernmentoftheUnited
StatesofAmerica[2008]
approvedtheprincipleinRvGoodyear.
HOLsapprovedapleabargainthatcutthe
Defendantssentenceinhalf.
FarahFarhanaHassan
Types of Plea Bargaining
1.ChargeReduction
A&PagreethatAshouldbeallowedto
PGtoalessseriouscharge.
E.g: A charged for an offence of drug
trafficking (S.39B of DDA). PB takes
placeonthecharge,partiesagreethatthe
charge be reducedor alteredto a charge
underS.39A(2)ofDDAoffenceofdrugs
possession which carries life
imprisonment.
DPPwillproduceanamendedchargeon
accusedwhichisS.39BS.39A(2).
Amendedchargewillbetenderedincourt.
The accused will PG and sentence to an
amended charge and not on principal
charge.
2.SentenceReduction
APGtotheoriginalchargeinexchange
forareducedsentence.
E.g: The accused was charged for an
offence of Rape under S.376 of PC.
Punishmentmaxis20years.Theaccused
goesthroughPBprocessonthesentence
meaningtosaythattheaccusediswilling
toPGfortheoffenceofrapeunderS.376
but on condition that he get a lighter
sentence.
The accused would PG to the original
charge. At the end of the day, during
sentencingstage,theProsecutionwillnot
pressforadeterrentsentence(Pagreeon
lessersentence).

Procedure S.172C
a) S.172C(1)providesfortheapplicationof
PBbemadeincourtinwhichtheoffence
istobetriedwhenanaccusedischarged
withanoffenceandclaimstobetried.
b) S.172C(2) The application shall be in
Form 28A of the 2nd Schedule and shall
contain:
i. Abriefdescriptionoftheoffence.
ii. Adeclarationbytheaccusedstating
that the application is voluntarily
made by him after understanding
the nature and extent of the
punishment.
iii. Information as to whether the PB
applied for is in respect of the
sentenceorthecharge.
c) S.172C(3)Thecourtshallissueanotice
inwritingtothePPandtheaccusedafter
receivingtheapplicationofPBinsub(1),
requiringthemtoappearbeforethecourt
on a date fixed for the hearing of the
application.
d) S.172C(4) After PP and the accused
appearondateofhearing,thehearingshall
be done incameraandthepurposeisto
determine the voluntariness of the
application.
i. If the accused is unrepresented:
the hearing shall be done in the
absenceofthePP.
ii. Iftheaccusedis represented:the
hearingwillbedoneinthepresence
ofhisadvocateandthePP.
e) S.172C(5) If the application is made
voluntarily,thentheAccusedandPPshall
FarahFarhanaHassan
proceed to mutually agree upon a
satisfactorydispositionofthecase.
f) S.172C(6)Ifinvoluntarily,thenthecourt
will dismiss the application and the case
shallproceedbeforeanothercourt
Whyanothercourt?
Asasafeguardtopreventmiscarriage
of justice. There is a risk of bias if the
samejudgeweretopresideoverthetrial
Theaccusedentitledforafairtrialin
anothercourt.
g) S.172C(7) Onlywiththepermissionof
the court in Sub(5), the PP and accused
shall start negotiating on a satisfactory
dispositionofthecase.
i. Ifsatisfactorydispositionagreed
the disposition shall be put in
writing & signed by the accused,
theDCifrepresentedandalsoPP.
ii. S.172C(8) If satisfactory
dispositionisnotagreedthecourt
shallrecordtheobservation&case
proceedbeforeanotherCourt.
h) S.172C(9) Duty of the court to ensure
thePBprocessiscompletedvoluntarilyby
allparties.

Advantages of Plea Bargaining
i. A shortcut to dispose the cases
speedily.
ii. Helps in reducing the emotional
anguishoftheaccusedawaitingtrial.
iii. PB settles the smaller cases, thus the
lawyers,PPandjudgehavemoretime
andresourcestodevotetimeonserious
andcomplicatedone.
iv. PBasthenegotiationprocess,ismore
flexibleandleadstomorediscussionas
opposedtotheargumentativenatureof
theadversarialsysteminthecourts.
v. PB supports the principle of
rehabilitation. When a person is
chargedforacrime,usuallytheywill
feel remorse and repentant. By
pleading guilty through PB, they will
obtainalessersentenceandgettoserve
the sentence as soon as possible thus
givingthemachancetostartanew.
vi. PBhelpstheProsecutionwherethe
accused has valuable information to
exchangewiththeP.
E.g: the accused have information
pertaining to the person behind the
drug operation or the whereabouts of
hisaccomplices.
FarahFarhanaHassan
vii. PBbenefitthevictimsastheywould
be spared the emotional trauma and
anguish reliving their experience in
court especially in a sexual offence
case.
E.g: Victims subject to cross
examination and have to divulge the
details of the offence committed
against them. (Difficult +
embarrassing)
Disadvantages of Plea
Bargaining
i. Putspressureontheaccusedtoplead
guiltyforthecrimesthattheydidnot
commit.
ii. Open to serious abuse by the
Prosecution as they can charge the
accusedwithamoreseriousoffenceto
inducetheaccusedtoPGinPB.
iii. The accused was not really punished
forhiscrimesduetotheleniencyofthe
sentenceorcharge.SincePBaredone
inprivate,thepublicisdeniedthetruth
oftheincident.
iv. Victimsmaynotbesatisfiedwiththe
sentencepressed.
v. Due to the leniency of sentence, it
might encourage tough criminals to
commitmorecrimes.
*Lookingatthebiggerpicture,theadvantages
outweighedthedisadvantages*