Plea bargain, discharge not amounting to an acquittal are mutually exclusive


LATELY, there have been many discussions on plea bargains and an order for a discharge not amounting to an acquittal.

I had also been confused on these two issues. Upon looking up the relevant sections in the Criminal Procedure Code (CPC), this is what I can surmise. And I humbly stand to be corrected by criminal law experts.

Plea bargains are governed by Section 172C to 172E of the CPC.

Section 172C(1) of the CPC states that “an accused charged with an offence and claims to be tried may make an application for plea bargaining in the Court in which the offence is to be tried”.

Section 172C(2) of the CPC states that the application under subsection (1) shall be in Form 28A of the Second Schedule and shall contain:

a) a brief description of the offence that the accused is charged with; 

b) a declaration by the accused 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 the accused is charged with; and 

c) information as to whether the plea bargaining applied for is in respect of the sentence or the charge for the offence that the accused is charged with.

A look at the third paragraph of Form 28A would reveal the following:

“I solemnly declare that this application is voluntarily made after understanding the nature and extent of the punishment provided under the law for the offence/ offences that I am charged with.”

In other words, the accused makes an application for plea bargain with Form 28A and the application must be made voluntarily.

Section 172(C)(7) of the CPC states that “where a satisfactory disposition of the case has been agreed upon by the accused and the Public Prosecutor, the satisfactory disposition shall be put into writing and signed by the accused, his advocate if the accused is represented, and the Public Prosecutor, and the Court shall give effect to the satisfactory disposition as agreed upon by the accused and the Public Prosecutor”.

This is where Section 172D of the CPC comes into play. 

Section 172D(1) of the CPC states that where a satisfactory disposition of the case has been agreed upon by the accused and the Public Prosecutor under section 172C, the Court shall, in accordance with law, dispose of the case in the following manner:

a) make any order under section 426; and

b) where the satisfactory disposition is in relation to a plea bargaining of the charge, find the accused guilty on the charge agreed upon in the satisfactory disposition and sentence the accused accordingly; or 

c) where the satisfactory disposition is in relation to a plea bargaining of the sentence, find the accused guilty on the charge and:-

(i) deal with the accused under section 293 or 294; or 

(ii) subject to subsections (2) and (3), sentence the accused to not more than half of the maximum punishment of imprisonment provided under the law for the offence for which the accused has been convicted.

What is important to note is that upon an agreement by the accused and the public prosecutor under section 172C, the court shall (must) find the accused guilty on the charge agreed upon or find the accused guilty on the charge and sentence in accordance with subsection (1)( c). There is no way around this. 

The bargain is either of the charge or of the sentence. But the sine qua non before the court disposes of the case is that the court must find the accused guilty.

Let us now look at an order of discharge not amounting to an acquittal.

Section 254 of the CPC states that the public prosecutor may decline to prosecute further at any stage. 

1) At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same. 

2) At any stage of any trial before a Sessions Court or a Magistrates Court before the delivery of judgment, the officer conducting the prosecution may, if he thinks fit, inform the Court that he does not propose further to prosecute the accused upon the charge, and thereupon all proceedings on the charge against the accused may be stayed by leave of the Court and, if so stayed, the accused shall be discharged of and from the same. 

3) Such discharge shall not amount to an acquittal unless the Court so directs.

Section 254(1) of the CPC uses the words “if he thinks fit”. From the little that I know, it usually relates to lack of evidence or witnesses unable to be located or documentation not in order. 

Perhaps one could also assert that giving information for other criminal proceedings may lead the public prosecutor to come to the conclusion that that is a “fit” situation not to further prosecute and to stay the proceedings on the charge. I am not sure. This agreement to give evidence for other criminal proceedings is not to be confused with a plea bargain, because a plea bargain cannot end in a discharge not amounting to an acquittal.

Section 254(1) states that “thereupon all proceedings on the charge against the accused shall be stayed”. 

Section 254(2) states that “thereupon all proceedings on the charge against the accused may be stayed by leave of the Court”.

When the court makes an order to discharge either under Section 254(1) or Sections 254(2), such a discharge does not amount an acquittal, unless the court so directs. This is pursuant to Section 254(3).

As we can see now, plea bargains must involve a finding of guilt of the accused on a charge, whereas an order for a discharge not amounting to an acquittal is a decision by the public prosecutor not to further prosecute the accused for reasons he or she deems fit, where the proceedings on the charges will be stayed.

As I said at the outset, I totally welcome any correction, or addition, to the above. – May 23, 2020.

* Puthan Perumal reads The Malaysian Insight.



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