Criminal charges in Malaysia are formal accusations made by a governmental authority stating that a person has committed a crime. When such accusation is made, the person is arrested and placed under detention.
Normally, when a person is arrested, the police can keep the person for no more than 24 hours after which they must either charge the person to court or release him or her. Remand proceedings, however, are proceedings initiated to further detain the person for more than 24 hours. The purpose of the proceeding is to allow the police to keep the person in custody while they continue or complete their investigations.
According to the Federal Constitution
, if a person is arrested and not released within twenty-four hours, the person must be produced before a magistrate and not further detained in custody without the magistrate's authority (Article 5(4)).
Section 117 of the Criminal Procedure Code
(CPC) sheds more light on this. It states that, “whenever a person is arrested and detained in custody and it appears that the investigation cannot be completed within twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or information is well-founded, the police officer making the investigation shall immediately transmit to a magistrate a copy of the facts of the case and also present the accused before the magistrate.
The length for which a person can be remanded is dependent on the offence the person is being investigated for. The standard procedure of remand proceedings in Malaysia is quite straightforward. It is divided into two stages.
- The first stage of the application must be carried out within the first twenty-four hours of arresting a person. Here, the investigating officer must apply for remand within the first twenty-four hours or release the suspect.
- The second stage of the application is only necessary if the remand period initially applied for proves to be insufficient. In this case, the investigating officer must make a second application before the expiration of the remand period of the first application.
If the offence being investigated carries a jail time sentence of fourteen years or less, the remand period on the first application must not be more than 4 days and that of the second application must not be more than 3 days.
If the offence being investigated carries a jail time sentence of more than fourteen years, the remand period on the first application must not be more than 7 days and that of the second application must not be more than 7 days.
While in custody, a person is permitted to be in communication with only his or her lawyer.
In this article, we will discuss some basic categories of criminal charges in Malaysia and what the law provides under each. This will include:
Fraud is committed when someone deceives another to get money or goods illegally. The basic elements of fraud are that there must have been deception and that the deceiving party carried out the transaction with the intent to deceive.
In proving fraud, the burden is usually on the prosecution. They must prove the alleged crime beyond a reasonable doubt. They must provide cogent evidence and suspicion cannot be accepted as proof of a bare allegation.
Fraudulent offences of Section 417,418,419,420,421,422,423 or 424 of Penal Code are the common charges we could observe in Court.
The Penal code in Section 378
, defined theft as moving property out of the possession of another person without their consent and with intent to take dishonestly.
According to the Penal Code Section 379
, theft may be punished “with imprisonment for a term which may extend to seven years or with fine or with both, and for a second or subsequent offence shall be punished with imprisonment and shall also be liable to fine or to whipping.
This means a first-time offender can be punished with no more than seven years imprisonment and/or a fine. A second-time offender can be punished with both imprisonment and whipping.
Other theft related provisions could be found in Section 379A, 380, 381, 382, and 382A of Penal Code.
The Penal Code Section 351 defines assault in terms of a threat of violence. It specifically provides that: “Whoever makes any gesture or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person.”
In simple terms, if a person makes a gesture or uses words which cause another person to fear the use of force, that person may be charged for assault. What this means is that assault extends beyond causing a person physical harm. It includes provocative words and offensive gestures.
The punishment for assault ranges from three months to ten years, depending on the peculiarity and severity of the case as stated from Section 352, 352A, 353, 354, 355, 356, 357, and 358 of the Penal Code.
Cybercrime is divided into three categories. They are:
- Crimes against people: As the name implies, these crimes are targeted against people and they affect people’s lives. Examples include cyber harassment and stalking, distribution of child pornography, spoofing, credit card frauds, human trafficking, identity theft and online related offenses.
- Crimes against property: These crimes affect properties such as computers and servers. They include hacking, virus transmission, computer vandalism, copyright infringement and others.
- Crimes against government: These are crimes targeted against governments and they are usually seen as acts of war. They include hacking, accessing confidential data, cyber warfare, cyber terrorism and pirated software.
Malaysia does not have a standalone Cyber Security Law, but it has some laws that counter cybercrimes. They include the Computer Crimes Act 1997 and the Personal Data Protection Act 2010, amongst others.
A person found guilty of any acts amounting cybercrime may be punished as follows:
- Non-compliance with the Personal Data Protection Act brings a fine of RM100, 000 to RM500, 000 or imprisonment ranging from one to two years or both.
- Non-compliance with the Communications and Multimedia Act brings a fine of RM50, 000 to RM500, 000 or imprisonment ranging from one to five years or both.
- Non-compliance with the provisions of the Computer Crimes Act or Penal Code brings a punishment of a fine of RM25, 000 to RM150, 000 or imprisonment of three to ten years or both.
Murder is considered to be the most heinous of offences. According to section 300 of the Penal Code, the crime of murder occurs when a person causes the death of another person:
- With the intention to cause death;
- With the intention to cause serious bodily harm that would likely result to death;
- With the intention to cause bodily injury which is sufficient to cause death “in the ordinary course of nature”; or
- With the knowledge that an act is so imminently dangerous that it may cause death or serious bodily harm, and yet commits that act
The punishment for murder used to be the death penalty. But due to pressure from the United Nations and Human Rights organizations, the punishment has been partially repealed
This means that while the death penalty was mandatory before (courts had no option but to impose it), it is no longer mandatory. Malaysian courts will have the discretion to decide which crimes are deserving of the death penalty.
What should you do when faced with criminal charges in Malaysia?
Knowing what to do when you are put under arrest and faced with criminal charges is important. You need to know what your rights are and what treatment you should expect from the police.
- You have the right to contact a lawyer. This right is guaranteed under the law and you should insist on it.
- Request a pen and paper before the questioning begins and jot down every question you are asked. It is also helpful if you write down your answers first before vocalizing them. Keep your notes to yourself for future reference.
- Take your time to think carefully before answering any question
- You have the right to remain silent if you are asked a question and you feel the answer to the question might implicate you. To this end, you must ensure that you understand every question you are asked.
- When asked to sign your statement, make sure you read the questions carefully and the answers that were recorded too. This is important as this statement will be used against you in court.
If you have been arrested or charged with a criminal offence, know that you might not have a lot of time. It is imperative that you contact a skilled Malaysia criminal law attorney immediately.
At Alan Kang & Co., we have a thriving criminal law practices and have assisted countless clients to defeat criminal charges. Our experienced and dedicated team are well versed in criminal law and have what it takes to assist in your case.
If you would like to speak with a lawyer about any current or potential charges you may be facing, please contact us immediately. The criminal law can be harsh, and it often waits for no one. Take action to secure your freedom today. Call us on +603-7972 7223.