This is to ensure that an accused person understands there may be a possibility of an acquittal at trial, which might see them escape punishment altogether. An accused person may also eventually be offered a reduced charge which would likely come with the possibility of a shorter prison term.

Lawyer Salim Bashir said Section 178 of the CPC does not prohibit accused persons from pleading guilty in capital cases, as long as they understand the nature and consequences of their guilty plea.

“However, lawyers must also consider the constitutional right of the accused to be accorded a fair trial which includes challenging the prosecution’s evidence through cross-examination,” he said.

Salim, a former Malaysian Bar president, was commenting on a case which came up for hearing in the Court of Appeal on Monday.

The accused person, a 58-year-old unemployed man, pleaded guilty in the Taiping High Court last August to trafficking 380g of cannabis.

On appeal, it transpired that Hasibullah Ghazali had been wrongly advised by his lawyer to enter a guilty plea to take advantage of an amendment in the law that gave judges the discretion to impose a jail term instead of the death penalty.

Hasibullah was sentenced to prison for 15 years although the offence he was charged with prescribed a mandatory 30-year jail term.

Although they appealed the sentencing error, prosecutors offered him a reduced possession charge when the case came up for hearing on Monday.

Hasibullah pleaded guilty and was given a 10-year prison term. He was also spared the rotan as he is more than 50 years of age.

Since last year, judges have been given the discretion of imposing a prison sentence of between 30 and 40 years for all serious offences, except drug trafficking, which is fixed at 30 years.

If a prison term is imposed, male offenders aged below 50 will also receive a minimum 12 strokes of the rotan.

Risk of enhanced sentence

Salim said there is always a risk that the prosecution will appeal an inadequate sentence if it does not reflect the gravity of an offence.

“Should the prosecution appeal, an appellate court could even set aside the prison term and impose the death penalty on grounds of public interest, if warranted on the facts of the case,” he said.

Salim cited crimes involving weighty drugs, drug manufacturing, and gruesome or multiple murders as those which may see a sentence enhanced at the appellate stage.

Possibility of acquittal, reduced sentence

Lawyer A Srimurugan said in two cases – PP v He King Kiok (1982) and Tang Hee Hing v PP (1991) – the then Supreme Court had accepted that accused persons in capital cases could plead guilty.

However, he said, this was rarely practised because prior to the amendment to the law, the offences carried the mandatory death penalty.

“Lawyers will always advise their clients to go through a trial. We will attempt to get an acquittal if a case involves sloppy investigations or if the prosecution makes a mistake when presenting their case,” he said.

Srimurugan said the judge or the prosecution may also, while the case is ongoing, choose to reduce the charge an accused person is facing, for example from murder to culpable homicide not amounting to murder, or from trafficking to possession due to a lack of evidence.

“Convicted persons may also have another chance of acquittal or a reduction in charge before the appellate court, including in instances where the trial judge committed a serious misdirection in law,” he said.

The lawyer also said appellate courts tend to acquit accused persons or reduce their charge as soon as a slight doubt is raised.

Benefits to pleading guilty

Lawyer Rajit Singh said traffickers charged for drugs with lower weights may benefit from a plea of guilty as they will receive a shorter prison term than if the case should go to trial.

“A lot of judicial time and resources can be saved and cases can be disposed of expeditiously,” the senior Ipoh-based lawyer said.

He said families of accused persons would also be relieved of the prolonged agony they tend to suffer if the case is pursued all the way to the Federal Court.