Police Arrest MCO Bail Plead Guilty Mitigate

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What Happens When You Are Arrested During The MCO

For Bahasa Malaysia version please click here

For Chinese version 中文版 please click here

Effective from March 18, 2020, Malaysia officially implemented the Movement Control Order (the “MCO”). In general, a police officer may arrest the violators of the MCO under:

1) Obstructing Public Servant In Discharge Of His Public Functions-Section 186 of the Penal Code where violators may receive a penalty of up to RM10,000 or imprisonment for two years or both;

http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Penal%20Code%20%5BAct%20574%5D2.pdf (Copyrights belong to the Publishers)

2) Offence Generally-Section 22 of the Prevention and Control of Infections Disease 1998 where offenders shall be liable on conviction in respect of a first offence to imprisonment for a term not exceeding two years or to fine or to both; and

http://www.federalgazette.agc.gov.my/outputp/pua_20200318_PUA91_2020.pdf (Copyrights belong to the Publishers)

3) Obstructing Public Servant In Discharge Of His Public Functions- Rule 3 of the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) Regulations 2020 where violators may receive a penalty of up to RM1,000 and/or imprisonment up to six months.

http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Draf%20Muktamad%20-%20Act%20342.pdf (Copyrights belong to the Publishers)

Arrest is the first step in criminal proceedings against a suspect.

Your rights upon arrest:

1) Right to be informed of the grounds of arrest;

2) Right to legal counsel;

3) Right to communicate with your lawyer and relative;

4) Right to be brought before a Magistrate within 24 hours (excluding weekends, public holidays and time for the journey to be produced a Magistrate).

After The Arrest:

1) You may be asked to surrender all your belongings (including but not limited to shoes, apparel, handphone, wallet, watches);

2) You may be required to sign a form stating that you have surrendered these items;

3) You may only be given very basic food, in some lock-ups;

4) In certain lock-ups , you may only be given drinking water from a  tap, yes, the normal water tap;

5) Usually the police lock-ups will house more than one suspect in one cell, you can socialise with quite a number of people from all walks of life. Ladies will be separated from the gentlemen.

After The First 24 Hours:

1) The police believe that there is no case against you, then the police will release you;

2) The police believe that they need a longer period to complete the investigation, the police will apply for a remand order to detain you further (if the offence is punishable with imprisonment of less than 14 years, the detention shall not be more than 4 days on the 1st application and not more than 3 days on the 2nd application);

3) The police believe that they have sufficient evidence to charge you, you will be brought before a Magistrate, and the charge will be read and explain to you and you shall be asked whether you wish to plead guilty or claim trial.

Legal representation is preferred to increase the chances to secure bail and reduced the sum required to be deposited so as to be granted bail.

POWERS OF POLICE TO ARREST

There are claims that police have no power to arrest MCO violators, our Minister clarified that the claim is wrong.

Please Click here to find out more

http://english.astroawani.com/malaysia-news/claims-police-have-no-power-arrest-mco-violators-wrong-238827 (Copyrights belong to the Publishers)

Why Bail Should Be Granted? What Reasons Should You Offer?

If you are arrested, you may try to offer the following reasons as ONE of the many reasons, please consult your lawyer independently.

The main purpose of the implementation of MCO is to break the chain of the Covid-19 infection and to flatten the curve. One of the ways is by the practice of social distancing. Thus, placing the violators of MCO in detention and putting them behind bars at this moment would defeat the very purpose of implementing the MCO.

The Human Rights Commission of Malaysia (SUHAKAM) has expressed the same concerned on their press statement dated April 3, 2020. This is because there is over a thousand of people arrested each day for these few days, most of them are in remand and later charged in court, only a small number of them were released on police bail.

Therefore the lock-ups and prisons are crowded with the violators of the MCO. The lock-ups and prisons are exposed to the risks of being the new cluster of Covid-19 infection.

Thus, bail should be granted as opposed to putting the violators in detention and later in jail.

Plead Guilty or Claim Trial

For Bahasa Malaysia version please click here

For Chinese version 中文版 please click here

1) You should get legal representation before the charge is read out to you, otherwise, if you cannot understand the nature and consequences of your guilty plea and your plea of guilt is recorded it is not appealable (you cannot appeal against the conviction and you can only appeal against the extent or legality of the sentence).

2) After your guilty plea you will be given an opportunity to mitigate the sentence that will be passed against you. Again, at this point if you do not have proper legal representation it will be very disadvantages.

3) If you do not plead guilty, the Court will proceed to fix a date to hear your case, wherein, the Prosecutor must made out a prima facie case against you, if a prima facie case is made out, the Court shall call upon you to enter defence. 

4) At the conclusion of the trial, the Court shall consider all evidence and shall decide whether the Prosecutor has proven its case beyond reasonable doubts.

Sentencing

If you plead guilty or is found guilty at the end of a trial, the Court will pass sentence according to the law and established judicial principles.

Mitigation

Before sentencing, you may offer a mitigation plea for a more lenient sentence.

Appeal

The prosecution or you may appeal against the judgment and sentence of the Court.

Parting Tip

Having the right advice at the right time can have a very significant impact on the outcome of your arrest, detention, bail, trial, sentencing and appeal.

Lim Wen Mi

LIM WEN MI

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