Guest Post: Criminal Law Basics 101
by Louis Liaw
As an extension to this wonderful article here, this article will talk about the criminal process after the arrest.
After you have been arrested, you may be detained up to a maximum of 14 days — depending on the remand order granted by the Magistrate — for investigation purposes. You are remanded in the police lock-up.
After the expiry of the remand order, the police must release you, otherwise you could sue them for illegal detention.
That being said, although you are released, whether before or after the expiry of the remand order, you may be released on police bail. This means that you maybe required to report to the police station from time to time to ensure you will not for example flee from the country. A surety (aka bailor) may be needed but usually further conditions (ie. a bail sum) will not be needed.
The role of the surety aka bailor will be explained further.
POST-RELEASE FROM POLICE STATION
Upon your release from the police station, the police may contact you or the surety to inform you to report to the police station to further assist with the investigation.
If you don’t hear from the police anymore, then the investigation has probably been closed and you are a free man.
Otherwise if the police manage to gather enough evidence, they shall submit the investigation papers to the Attorney General Chambers for consideration on whether a prosecution against you should be initiated.
Under the AG Chamber’s clients’ charter, it is under their KPI that the AG Chambers must peruse the investigation papers within 14 days, and reply swiftly whether prosecution has to be initiated.
ROLE OF THE AG CHAMBERS — PROSECUTION/PIHAK PENDAKWARAYA
If the AG Chambers after perusing the investigation papers is of the opinion that there is sufficient evidence to initiate prosecution against you, a charge sheet will be drawn up against you.
And that would mean you are charged with an offence.
Once the Police have been informed that you are charged, a summons may be sent to your address to appear at court on a certain date and certain time for the mention of your case; failure to turn up may result in a warrant of arrest issued against you.
Alternatively if an offence is considered serious enough, the police may come to your home and arrest you, but shall bring you before the court at the next earliest opportunity.
During your stay in the lockup before your appearance in court, remember you have to right to legal representation and the right to make a call to your family members, as a general rule.
APPEARANCE BEFORE COURT
Whether by summons or being produced by the police after detention, you shall appear before the court at least within 60 days from being charged according to Section 172(b) of the Criminal Procedure Code.
On that day, you will be read the charge sheet — which shall state to you the offence you are charged under and the place of the commitment of that offence.
By now, if you have been out on bail, you should have appointed a lawyer to appear for you on that day, but more importantly if you intend to get bail, a bailor should be ready on that day.
If you were not able to get a lawyer by then, you will need to self-represent but you may inform the court that you intend to get a lawyer soon so your case “starts” on another day.
READING OF THE CHARGE
Upon being read the charges, you will be asked whether do you plead guilty or not.
If you decide to plead guilty, you will be told again the possible sentence to your offence and asked again whether you would maintain your guilty plea.
If you proceed to plead guilty, the facts of the case and the evidence will be shown to you and tendered as evidence of the court.
Thereupon, the court will convict you and sentence you. You or your lawyer may mitigate for you in order to reduce your sentence. Mitigating factors are such as if you are a first offender, your family background, you being the sole breadwinner of the family and so on.
PLEADING NOT GUILTY
If you decide to plead not guilty however, if you have a lawyer he would get another date to mention your case, which will normally be the date to receive the prosecution documents.
Therefore, the important thing is what happens between this court appearance and the next date?
This is when the application for bail will kick in.
Under our penal code there are three types of offences:
- non-bailable; and
- unbailable offences.
A bailable offence means bail has to be offered as of right — the court MUST offer bail. (For example, hitting someone, defaming someone etc.) Non-bailable means the court has the discretion to grant bail or not. (For example, theft.) Unbailable offence means no bail will be offered. (For example, a terrorism related offence.) A complete list of bailable and non-bailable offences is found at column 5 of the First Schedule of the Criminal Procedure Code.
If you decide to plead not guilty and you have the capacity to pay for the bail sum as well as have a person willing to be your bailor, then you can ask for bail if your offence is not an unbailable offence.
Then the court will listen to the Prosecution on why bail should not be allowed or that a bail sum should be high, ie. you are prone to abscond or that you are a repeated offender, and also then hear from you or your lawyer on why you should be ordered a small bail sum, for example because you are from a poor background or that you have family here and therefore the chances of you fleeing are low.
After hearing both sides, the court will then decide whether to grant bail, and if yes how much.
A person may be appointed as the bailor, who’s role is explained below.
The duty of the surety is to ensure that the accused attends court (ie. the next court mention date) or his bail conditions (ie. reporting to the police) as ordered by the court are complied with.
The surety will be asked to pay a certain amount of his own money into the court as guarantee that he will do as ordered (normally the bail sum is the bailor’s money la, since he is the one bailing you out).
As such, when the accused fails to comply with the bail condition or fails to attend court, the surety / bailor may be
- discharged his duty as a surety; and
- has the bail money confiscated by the court.
The Court will also issue an arrest warrant against the accused.
The surety can at any time apply to court to discharge himself as a surety. Then either:-
- a warrant of arrest will be issued against the accused and if the accused was caught and eventually attends court, the surety can get back his bail money while the accuse without a bailor, goes back into the lockup; or
- the accused attends court by himself with another person ready to be a surety then he can continues his bail; or
- if the accused totally disappears and despite the warrant of arrest cannot be found, then the bail sum will be confiscated by the court.
There you go. This is the basic procedure after the arrest and charge. I hope you now have a clear understanding of how the criminal procedure works. If you think that this article is interesting, please share it, and if the response is good I am happy to write another article about what happens after this bail procedure, meaning what happens at the next court management up until the trial process.